The main legal point established in the judgment is the interpretation and application of the conditions and limitations for the production of additional evidence in the appellate court, emphasizing the importance of diligence and the limitations on introducing a new case at the appellate stage.

S. N. Srivastava, J.—Petition in hand has its genesis in the impugned order dated 10.10.2003, passed in Civil Appeal No. 276 whereby Application No. 269C under Order XLI, Rule 27, C.P.C. and application No. 296C for amendment in the written statement have been rejected by the lower appellate court.

2. It would appear from the record that Suit No. 912 of 1990 was instituted by respondent No. 2 for the relief of permanent injunction. The aforestated suit culminated in being decreed and this led to filing of appeal before the lower appellate court. During pendency of appeal, the petitioners preferred application Nos. 269C under Order XLI, Rule 27, C.P.C. and 296C for amendment in the written statement. The aforestated applications came to be rejected by means of impugned order dated 10.10.2003 and it is in the above backdrop that the present petition has been instituted for the relief of writ of certiorari quashing the impugned order.

3. I have heard learned counsel for the parties at length and have also traversed upon the impugned order for its intrinsic merit.

4. The learned counsel for the petitioners who was arrayed as respondents in the suit canvassed that the amendment sought to be incorporated in the written statement was imperative inasmuch as they were seeking to introduce alternative plea of ownership in relation to land in question which is permissible in law. It was further submitted that application for additional evidence was apt to be allowed inasmuch as the ingredients as embodied in Order XLI, Rule 27 of the C.P.C. bulked large and consequently impugned order were liable to be set aside. Per contra, the learned counsel for the opposite-parties tried to buttress the impugned order stating that the amendment sought to be introduced runs counter to the original pleading inasmuch as in the original pleading the property in question was claimed to be property of Nagar Mahapalika, Agra, while by means of amendment, they were trying to introduce a new pleading claiming their title over the property in question which is in contrariety of the original pleading as taken in the plaint. The learned counsel further contended that the application for additional evidence was rightly rejected as there was justifiable ground to make out a case warranting admissibility of additional evidence at appellate stage.

5. In connection with the question involved here in this petition, I feel called to acquaint myself with the relevant provisions of the Code of Civil Procedure. Section 107 (d) of the Civil Procedure Code empowers the appellate court to take additional evidence or require such evidence to be taken subject to such condition and limitation as may be prescribed. Order XLI, Rule 27 of the C.P.C. prescribes the conditions and

limitations in the matter, Rule 27 of Order XLI, C.P.C. may be excerpted below :

“27. Production of additional evidence in appellate court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if—

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or,

(b) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,

the appellate court may allow such evidence or document to be produced, or witness to be examined.

(2) Where additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission.”

It brooks no dispute from a perusal of Rule first that the parties to an appeal shall not be entitled to produce additional e