A party cannot introduce additional evidence at the appellate stage if it was not presented during the trial despite due diligence; original documents must be properly proven as per statutory requirements.

JUDGMENT :

Rohit Ranjan Agarwal, J.

1. Heard Sri Prakhar Tandon, learned counsel for the petitioner and Sri Swapnil Kumar, learned counsel for the respondents no.2 to 7.

2. This writ petition is directed against the order dated 18.01.2019 passed in Civil Appeal no.22 of 2013 filed by the plaintiff- petitioner in which an application under Order XLI Rule 27 CPC for filing additional evidence has been rejected by the Court below. 3. Facts, in short, are that the plaintiff-petitioner had instituted a Suit bearing Suit No.802 of 1991 against the defendants- respondents no.2 to 7. According to para 1 of the plaint, a registered Will was executed by one Zahur Hasan in favour of the plaintiff on 30.11.1983. The said suit has been filed for seeking relief of permanent injunction against the defendants-respondents. The trial Court on 09.05.2005 and 25.01.2008 had framed the following issues:-

4. Issue no.1 was in regard to the ownership and possession over the property in dispute. The trial Court while deciding issue no.1 had recorded a specific findings that the plaintiff had filed certified copy of the Will, but the said Will was never proved in terms of Section 68 of the EVIDENCE ACT . The suit filed by the plaintiff was dismissed, against which, a civil appeal was preferred being Civil Appeal No.22 of 2013 in which an application under Order XLI Rule 27 CPC was moved on 17.03.2015 for calling for records of proceedings under Section 34 of the LAND REVENUE ACT , in which, the original Will dated 30.11.1983 was filed by the plaintiff and the plaintiff be permitted to prove the Will in accordance with Section 68 of the EVIDENCE ACT . The said application has been rejected, hence the present writ petition.

5. Learned counsel appearing for petitioner has submitted that to do substantial justice, the Court below should have allowed the said application, as the Will in question was not in custody of the plaintiff and the certified copy of the same was filed before the trial Court. The plaintiff could not prove the Will as the original copy of Will was filed in proceedings for mutation before revenue Court.

6. Sri Swapnil Kumar, learned counsel appearing for defendants has submitted that the plaintiff had not tried to prove the Will during pendency of the civil suit though the certified copy of the Will was filed, nor any application was made for summoning the records of the revenue Court, in which, the original Will was filed. According to him, the lacuna cannot be filled at the appellate stage.

7. I have heard respective counsel for the parties and perused the material on record.

8. Order XLI Rule 27 CPC provides for the filing of additional evidence at the appellate stage. Rule 27 provides that the appellate Court may permit the appellant to produce additional evidence when it is established that, notwithstanding exercise of due diligence, such evidence was not within the knowledge or could not, after exercising of such due diligence, could be produced by the plaintiff when the decree appealed against was passed.

9. In the instant case, the plaint itself reveals that the Will was executed by Zahur Hasan on 30.11.1983 in favour of the plaintiff. The plaintiff himself had filed a certified copy of the Will before the trial Court, but he did not make any effort to prove the Will in terms of proviso to Section 68 of EVIDENCE ACT , nor any application was moved by the plaintiff for summoning the records from the revenue Court to prove the Will in question. It is only at the stage of appeal that the application has been made for summoning the records from the revenue Court, and permitting for proving the Will in terms of proviso to Section 68 of EVIDENCE ACT . 10. This Court finds that the lacuna, which had occ