Point of Law:
Section 107(d) C.P.C. is an exception to the general rule and the additional evidence can be taken only when the condition and limitation laid down in the said rule are found to exist. When the appellate court finds itself unable to pronounce judgment, owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of Court delivering it. The principle of law as laid down in the case of Mahavir Singh (supra), would apply to the facts of the present case and the impugned order, as it does not record its satisfaction on the point if the appellate court was able to pronounce judgment on the basis of evidence/material available on the record of the trial court and if the additional evidence was required for pronouncing a satisfactory judgment the impugned order cannot be sustained.

JUDGMENT :

RAVI NATH TILHARI, J.

1. Heard Shri Rahul Dev Garg, Advocate holding brief of Shri Nipun Saini, learned counsel for the petitioner. The respondent no. 1, is Additional District Judge, Court No. 1, Meerut whose order is under challenge in the petition. No one responded for the respondent nos. 2 to 4, even in the revised list.

2. The matter being old one and as it pertained to the year 2006, the court proceeded to hear the matter on merits, on the basis of material on record and after hearing the learned counsel for the petitioner, the judgment was reserved.

3. By means of this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 29.03.2006 passed by the learned Additional District Judge, Meerut in Misc. Appeal No. 98 of 2004, Chandra Deo Tyagi vs. Surya Deo Tyagi and Another, passed on the petitioner’s application for admission of additional evidence under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure (in short C.P.C.) whereby the petitioner’s said application (14A/1) was rejected. The petitioner has also prayed that a direction may be issued to respondent no. 1 i.e. the Additional District Judge, Court No. 1, Meerut to allow the petitioner’s application under Order 41 Rule 27 C.P.C.

4. The facts of the case are that the petitioner is a plaintiff who has instituted the Original Suit No. 11 of 2001, Chandra Deo Tyagi vs. Surya Deo Tyagi and Another in the Court of Civil Judge (Junior Division) Sardhana, Meerut, for a decree of declaration that the petitioner is the owner in possession of a tube well/boring, situated over part of Gata No. 333 District-Meerut. The mandatory injunction is also requested to direct the respondent nos. 3 and 4 i.e. the U.P. Power Corporation through its Chairman Vikramaditya Marg and the Executive Engineer Electricity Distribution Division-II, Meerut, to disconnect the electricity connection of the tube well, which was granted in favour of respondent no. 2 Surya Deo Tyagi. The petitioner has also prayed for prohibitory injunction to restrain the respondent no. 2 from interfering in the usage of tube well by the petitioner. In the suit, the petitioner also filed an application for grant of temporary injunction under Order 39 Rules 1 and 2 C.PC.

5. The learned Civil Judge (Junior Division), Shardhana, Meerut rejected the application for temporary injunction by order dated 27.05.2004. The petitioner filed Misc. Appeal No. 98 of 2004 before the learned District Judge, Meerut, under Order 43 Rule 1 C.P.C. In the said appeal, the petitioner filed an application for admission of additional evidence, as per the list of documents (Annexure no. 3 to the petition) under Order 41 Rule 27 C.P.C. The petitioner’s said application was allowed on payment of cost and the respondent no. 2 was granted time to file rebuttal, by order dated 21.02.2005. Against the order dated 21.02.2005, an application for recall was filed by the respondent no. 2 which was rejected on 08.09.2005 and further one month’s time was granted to file rebuttal which time was further extended on 10.10.2005 and 07.11.2005 in favour of respondent no. 2.

6. The respondent no. 2, thereafter, filed Writ Petition No. 66932 of 2005, Surya Deo Tyagi vs. Chandra Deo Tyagi and Others, before this Court challenging the order dated 21.02.2005. The writ petition was allowed by means of judgment and order dated 09.11.2005. The order dated 21.02.2005 passed by the appellate court was quashed and the matter was remanded, with a direction to the appellate court to decide the petitioner’s application under Order 41 Rule 27 C.P.C., after affording opportunity of hearing to the present respondent no. 2, expeditiously, and preferably within a period of six weeks from the date of production of copy of judgment before the appellate court.

7. After remand the appellate court rejected the petitioner’s application under Order 41 Rule 27 C.P.C. after hearing both the parties, by order dated 29.03.2