Advocates:
Advocate Appeared:
For the Appellant :Mr. Rishi Pal Chodhary, Advocate
For the Respondent:Mr. Avnish Mittal, Advocate and Mr. Gorav Kashyap, Advocate

JUDGMENT :

Alok Jain, J.

The present petition has been filed inter alia challenging the order dated 24.02.2021 (Annexure P-4) passed by the learned Additional District Judge, Yamuna Nagar at Jagadhri, whereby, an application under Order 41 Rule 27 CPC seeking permission to lead additional evidence has been allowed.

2. Learned counsel for the petitioners submits that the impugned order suffers from material irregularity on the ground that the evidence now sought to be brought in by the respondents was within his knowledge and more so, during the pendency of the suit, they had moved an application under Order 18 Rule 17 A CPC for bringing the same evidence but the said application was dismissed on 04.03.2003. He further submits that the said order attained finality as the same was never challenged by the respondents and now by virtue of invoking Order 41 Rule 27 CPC, the respondents cannot be permitted to fill up the lacunas.

3. Learned counsel for the petitioners relies upon the judgment passed by the Co-ordinate Bench of this Court in the case of "Rani Vs. Raksha Rani and others" in CR No. 6626 of 2013 and relies upon para 10 and 13 which reads as under:

10. Moreover, additional evidence cannot be allowed to be used as a handle or a tool by a party to fill up the lacuna in his evidence particularly when rights of the parties have been adjudicated and the applicant-defendant is already in appeal before the first appellate court.

13. When evidence of the defendant No.4 had been closed by order of the Court and the said order had never been challenged in any court of law, application for adducing additional evidence in the appellate court is not maintainable. Relevant part of the observations made by the first appellate court in impugned order dated 30.9.2013 are reproduced as below:

"There is no case made out for exercise of due diligence and despite that the evidence remaining at bay and not see in the light of the day in the Court. Having regard to the totality of the facts and circumstances of the case, this Court is of the considered opinion that the documents sought to be produced by the appellants by way of the application under consideration were in the knowledge of the appellants-applicants at the stage of leading the evidence and those should have been produced before the learned trial Court. The application under discussion is just an exercise to reopen the case without any valid reason. It is not a case of no production of the evidence sought to be produced at this stage despite exercise of due diligence. This court is not satisfied with the explanation furnished through the application for non-production of the documents at the appropriate stage. The arguments that learned counsel in the learned trial Court was remiss has also failed to impress this Court and if the laxity of the counsel is a valid reason, the judicial decisions would not reach finality and those would have to be reopened at the mere asking."

4. On the strength of the above, learned counsel for the petitioners prays for allowing the present revision and setting aside the impugned order.

5. Per contra, learned counsel for the respondents submits that the matter was in fact remanded by the High Court in RSA No. 4108 of 2005, wherein, the following order was passed.

xxx xxx xxx

In view of the above, the appeals stand disposed of. Impugned judgment and decree(s) passed by the appellate Court is set aside. The matter is remitted to the appellate Court for decision of the appeals afresh, in accordance with law. The parties would be at liberty to file application for additional evidence. If any such application is filed by either of the parties, the same would be decided by the first appellate Court, in accordance with law. Parties through their counsel are directed to appeal before the first appellate Court on 27.11.2019. The appellate Court is directed to dispose of the appeals within a period of six months of parties in appearance"

6. Subsequently, by virtue of the