JUDGMENT :

Harsimran Singh Sethi, J. (Oral)

CM-5140-C-2023 and CM-8998-C-2023

Present applications have been filed for withdrawal of the oral statement dated 28.02.2023 as well as for recalling the order dated 28.02.2023.

Though, the said order dated 28.02.2023 was passed in the presence of the counsel for the appellants but as the appellants are not satisfied with the order and intend to argue the appeal on merits, this Court recalls the order dated 28.02.2023 and restore the appeal to its original number and status and thereby allow the said applications.

CM-5466-C-2023

Present application has been filed to amend the memorandum of appeal.

Keeping in view the facts mentioned in the application, which are duly supported by an affidavit, application is allowed. The amended memorandum of appeal is taken on record.

CM-5467-C-2023

The present application has been filed under Order 41 Rule 27 read with Section 107 of the CPC for leading additional evidence in view of the facts and circumstances of the present case.

By this application, the legal heirs of the applicant-appellant-Raj Kumar (since deceased) intend to bring on record the Mutation No. 15271, which has been recorded by the Revenue Authorities deleting the name of the appellant-plaintiff from the mutation record.

Learned counsel for the appellants submits that non-bringing on record of the said mutation was totally inadvertent hence, the application for producing the additional evidence on record be allowed.

It may be noticed that the applicant-appellant in fact has challenged the said mutation in the civil suit wherein a declaration for declaring the same as null and void was sought. The said mutation was to the knowledge of the applicant-appellant right from the day when the suit was filed. Once, challenge was raised to a particular document, it cannot be said that the said document was not in the knowledge of the applicant-appellant for him to bring the same on record before the trial court.

Further, the knowledge of the said document is not being denied by the applicant-appellant but it is being mentioned that inadvertently, the same could not be brought on record. It may be noticed that the claim of the applicant-appellant with regard to the said declaration was rejected by the trial court on the very ground of not having produced the said document on record qua which declaration was sought and the same was also not brought on record even before the lower appellate court, which has also rejected the appeal filed before it by recording the same finding. It is a settled principle of law that no document can be brought on record by way of additional evidence only to fill up gaps and lacunae in the evidence.

In the present case, by this application the applicant-appellant attempts to fill the gaps and lacunae in evidence in regards to not bringing on record the very document, against which declaration was sought merely on the ground that the same was on account of an inadvertent mistake, the said reasoning does not fulfill the position of law as per Order 41 Rule 27 of CPC, which is required to be satisfied so as to take on record additional evidence at the appellate stage and, therefore, the same cannot be permitted. The settled principle of law as observed by the Hon'ble Supreme Court in Civil Appeal No. 14055 of 2015 titled as Andisamy Chettiar Vs. Subburaj Chettiar, decided on 08.12.2015 is reproduced hereunder :-

'11. Under the scheme of Code of Civil Procedure, 1908 (for short "the Code") whether oral or documentary, it is the trial court before whom parties are required to adduce their evidence. But in three exceptional circumstances additional evidence can be adduced before the appellate court, as provided under Section 107(1)(d) read with Rule 27 Order 41 of the Code. Rule 27 Order 41 reads as under :-

12. From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in t