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Des Raj and anr. Vs. Dharam Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 225 of 1984
Judge
Reported inAIR1986HP95
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 27
AppellantDes Raj and anr.
RespondentDharam Singh and ors.
Appellant Advocate Devinder Gupta, Adv.
Respondent Advocate H.K. Bhardwaj and; Praneet Gupta, Adv.
Excerpt:
- .....in the lower court file'. the order-sheet shows that the appeal was fixed for hearing before the learned district judge on the same day, that is october 27, 1984 and that it was, in fact, heard on that day. the appeal was then directed to be posted for orders on october 29, 1984. on october 29, 1984, an application was moved on behalf of the petitioners herein, inter alia, stating that at the stage of arguments the first respondent had sought to spring a surprise by seeking to produce certain documents and that those documents appeared to be forged and that on the facts and in the circumstances of the case, the appeal was required to be fixed for rehearing on another date. the purport of this application clearly was that the production or additional evidence by the first respondent at.....
Judgment:
ORDER

1. Ordinarily this Court does not interfere in revision with a discretionary order passed by the lower Appellate Court granting interim relief pending disposal of the suit. In the present case, however, the lower Appellate Court is shown to have committed an error of jurisdiction resulting in miscarriage of justice and intervention has, therefore, become unavoidable.

2. The revision arises out of an application for interim relief made in a suit instituted by the first respondent (original plaintiff) against the petitioners (original defendants). The Trial Court rejected the application for interim relief. An appeal was carried against the said order to the District Court, Una. It appears that while the appeal was pending in the District Court, an application was made on behalf of the first respondent on October 27, 1984 praying that he 'be allowed to attach two documents with the file of appeal and the same may also be read in the lower Court file'. The order-sheet shows that the appeal was fixed for hearing before the learned District Judge on the same day, that is October 27, 1984 and that it was, in fact, heard on that day. The appeal was then directed to be posted for orders on October 29, 1984. On October 29, 1984, an application was moved on behalf of the petitioners herein, inter alia, stating that at the stage of arguments the first respondent had sought to spring a surprise by seeking to produce certain documents and that those documents appeared to be forged and that on the facts and in the circumstances of the case, the appeal was required to be fixed for rehearing on another date. The purport of this application clearly was that the production or additional evidence by the first respondent at the appellate stage was objected to by the petitioners. The order-sheet shows that upon the aforesaid application having been presented, the learned District Judge fixed the appeal for rehearing on the next day, that is, October 30, 1984. The order-sheet further shows that the appeal could not be heard on October 30, 1984 and that it was actually heard on the next day, that is, October 31, 1984, and that on the same day it was decided by pronouncing the judgment. In the course of the judgment the learned District Judge made the following observations in paragraph 8 :

'8. Mr. Vijay Sharma, the learned counsel for the appellant submitted that the order of the trial Court is wrong as for the purpose of this application, the latest revenue record is to be preferred. He further submits that the Court is to see the possession at the time of issuance of injunction. His next submission is that the mutation has been sanctioned regarding exchange of the suit land in favour of the plaintiff and has filed an application to bring this factum on record. The mutation was sanctioned on 28-5-1976. I have allowed the application after bringing it to the notice of the other counsel at the time of arguments.'

A bare reading of the judgment as a whole shows that not only were the documents in question taken on record but they were also, along with other evidence, relied upon in deciding the appeal in favour of the first respondent.

3. There is no manner of doubt that the learned District Judge has not only acted with material illegality but also with material irregularity in taking on record additional evidence which was sought to be produced on behalf of the first respondent without following the proper procedure. Order 41, Rule 27 of the Code of Civil Procedure is the only provision which permits production of additional evidence in the Appellate Court. The Appellate Court has to act strictly in conformity with those provisions before allowing production of additional evidence. It has to be satisfied that any one or more of the grounds stated in Sub-rule (1) of Rule 27 are made out and it has to record its reasons for allowing the production of evidence. Besides, if there are any objections to the production of the additional evidence, the Appellate Court has to determine those objections in accordance with law and if it decides to overrule those objections, it has to afford an opportunity to the other side to lead evidence in rebuttal. None of those requirements appears to have been borne in mind by the learned District Judge and he appears to have acted in total disregard of the relevant statutory provisions. In fact, when the appeal was fixed for re-hearing on October 31, 1984, it is difficult to understand or appreciate how the learned District Judge could have proceeded to pronounce on the same day a judgment which is not shown to be oral and that too without dealing with or deciding the objection on the production of documents in question.

4. For the foregoing reasons, the revision petition deserves to be accepted and it is accepted. The impugned decision rendered by the Jearned District Judge is quashed and set aside. The case is remanded to the lower Appellate Court with a direction to readmit the appeal on its file and to fix the appeal for hearing and to deal with and decide the application for production of additional evidence and also to decide the appeal in accordance with law and in light of the observations made hereinabove.

5. Rule made absolute accordingly. The first respondent will pay the costs of this petition to the petitioners quantified at Rs. 100/-. The costs will be paid as a condition precedent before the appeal is heard. The parties will appear before the learned District Judge on April 1, 1985.


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