An appellate court may allow additional evidence under Order 41 Rule 27(b) if it deems it essential for a just decision, provided it adheres to the procedure in Order 41 Rule 28 by allowing the opposing party a fair opportunity to rebut said evidence, necessitating a stay of the final judgment.

Order on board

1. The present writ petition has been filed by the petitioner under Article 227 of Constitution of India against the impugned judgment and order dated 15.01.2021 passed by learned 2nd Addl. District Judge, Ramanujganj, Place- Balrampur, Dist- Ramanujganj in Civil Appeal No. 2A/2017 whereby the application filed by the respondents No. 1 to 3 under Order 41 Rule 27 of CPC is allowed and directed the parties to produce their evidences with respect to the additional evidence taken on record and stayed the passing of the judgment.

2. The brief facts of the case is that the original petitioner Makhmal Devi was the plaintiff before the learned trial Court. During the pendency of the present writ petition, she died on 04.01.2025 and her legal representative has been brought on record. The original plaintiff Makhmal Devi had prosecuted a civil suit for declaration of title, permanent injunction and vacant possession of the suit house against the defendants. It was the claim of the plaintiff that she purchased the suit property, land Khasra No. 130/1, Area- 0.080 Hec. through registered sale deed dated 22.12.1979 for total consideration of Rs. 2000/- from its owner Vishwanath Prajapati and had constructed a house thereon and started residing. The plaintiff had another house for her cattle which was situated at Ramanujganj/ Bhawari Road. The defendant No. 1 was the friend of the husband of the plaintiff and on his request, the defendant No. 1 gave the suit house on licence to the defendant No. 1 with the assurance that he will vacate the suit house in the year 1984 after construction of their own house. In the meantime, there was a negotiation to sale the suit house in favour of the defendant No. 1, however, in view of requirement of prior permission of Collector for sale of property, an agreement was executed between the plaintiff and defendant No. 1. However, the defendant No. 1 has not obtained any permission from the Collector and the said agreement was manipulated and get his name mutated in the revenue records. Thereafter, the plaintiff has filed the civil suit.

3. The defendant No. 1 denied the claim of the plaintiff and has pleaded that the plaintiff has sold the suit house on 21/03/1980 for consideration of Rs. 2000/- in favour of defendant No. 2 and 3 and since the registration of deed could not be effected without prior permission of the Collector, they have got executed the sale deed in the form of an agreement for consideration of Rs. 95/- and came into possession of the suit property. The defendants are residing thereon after constructing their house and in view of take undue advantage, the plaintiff has filed the suit.

4. Learned trial Court framed issues and after recording evidence of the parties, passed its judgment on 01.03.2000 by which a decree has been passed in favour of the plaintiff that she is the title holder of the suit property and she is entitled for vacant possession of the same from the defendants. The defendants filed their first appeal under Section 96 of CPC before the learned 1st Appellate Court. The said first appeal filed by the defendants was dismissed for want of prosecution and the application for restoration of the first appeal was also rejected by the learned 1st Appellate Court. The rejection of the application by the 1st Appellate Court for restoration of the first appeal was challenged by the defendants before this Court in WP No.