JUDGMENT
A.P. Chowdhri, J.
1. Brief facts giving rise to this revision petition are that Gurbachan Singh, respondent No. 1, was owner of 34 Kanals 10 Marlas of land being 1/2 share of the land described in detail in the suit situated at village Nijjran, Tehsil and District Jalandhar. He made alienation of a part of the land in favour of respondents 4 and 5. The petitioners are respectively the son and wife of said Gurbachan Singh They instituted a suit for declaration and permanent injunction restraining the said defendant No. 1 from alienating ancestral property without legal necessity and that the alienation already made by him was void and of no effect against the right, tide and interest of the plaintiffs. The suit was contested. By order dated January 5, 1984, Subordinate Judge 1st Class Jalandhar, dismissed the suit. Aggrieved by the judgment, the plaintiffs preferred an appeal, which is pending before the Additional District Judge, Jalandhar. During the pendency of the appeal in the lower Appellate Court, the plaintiff-appellants made an application under Order 41 Rule 27 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) seeking to produce the following documents as additional evidence: –
(1) Certified copy of Jamabandi for the years 1979-80.
(2) Mutation.
(3) Copy of Fard Misal Haqiat for the year 1958.
(4) Copy of Khatauni Ishteinal.
(5) Copy of the pedigree table
2. The application was resisted and by order dated September 28, 1991, the learned Additional District Judge dismissed the application mainly on two grounds, namely, (1) that the application was intended to fill in lacuna, which could not be permitted, and (2) that additional evidence could not be permitted in view of the order passed by a learned Single Judge of this Court in an earlier revision petition Aggrieved by the order, the petitioners have preferred this revision petition.
3. The contention of Mr. H. L. Sarin. Senior Advocate, learned counsel for the petitioners, is that the documents sought to be produced were certified copies of public record. Their authenticity was not open to doubt. He further contended that the documents were necessary for a correct decision of the question in controversy, namely, whether the land in question was ancestral in the hands of Gurbachan Singh. He placed reliance on Ashwani Kumar v. Gopal Krishan, 1989 (2) Rent L. R. 344. in which it was held that where the documents sought to be produced’ by way of additional evidence were of unimpeachable character, the same should oreinarily be allowed on payment of costs.
4. The contention of Mr S. K. Gautam, learned counsel for the respondents, on the other hand, is that the applicants could not be permitted to fill up lacuna left during the trial. He placed reliance on Parshotim Thakur and Ors. v. Lal Mohar Thakur., A. I. R. 1931 P. C. 143.
5. Before dealing with the contentions raised in this petition it may be mentioned here that during the pendency of the appeal ‘the plaintiff-appellants made an application for seeking the additional relief of possession of l/3rd of the land in question by way of amendment of the plaint under Order 6 Rule 17 of the Code. The application was dismissed by the Additional District Judge, seized of the appeal, by order dated April 26, 1986. A revision petition was filed there against, which was allowed by a learned Single Judge of this Court. It was in the context of allowing the prayer for, amendment that it was observed by the learned Single Judge that because of the proposed amendment, none of the parties would be entitled to lead any further evidence. This observation has been taken by the learned Additional District Judge as a bar against the production of additional evidence and this was. therefore, one of the reasons for dismissing the application under Order 41 Rule 27 of the Code. The aforesaid observation was made in the context of the application for amendment seeking to add the relief of possession. It could not be construed to mean that there was a direction against admission of additional evidence even if a case were made out at a later stage under Order 41 Rule 27 of the Code. The learned Additional District Judge therefore, fell into a serious error in construing the order passed in the revision petition by this Court to mean that a complete embargo had been placed on the production of additional evidence even if a case for doing so had been made out.
6. No doubt, the normal rule is against the production of additional evidence in the appeal, nevertheless a provision has been expressly made under Order 41 Rule 27 of the Code and in considering whether the proposed additional evidence should be permitted or not, a safe and sure guide is the interests of justice and whether the additional evidence would cause prejudice to the other side. In the facts of the present case, the documents sought to be produced are all from public record and their authenticity cannot be doubted. The decision of the Privy Council in Parshotim Thakur’s case (supra) is distinguishable, inasmuch as there the additional evidence sought to be produced related to thumb impression of a certain person. In other words, it was not in the nature of certified copies of public record. It was, therefore, in the facts of that case that it was observed that the person seeking to produce the additional evidence could not be permitted to fill up the omissions in the, court of appeal below. The above authority is thus clearly distinguishable from the facts of the present case.
7. Faced with this difficulty, Mr. Gautam stated (sic) part of the land in question had been gifted by Inder Singh son of Ran Singh vide gift deed Exhibit D 2 The argument is that, that being so, there was no question of the land being ancestral in the hands of Gurbachan Singh. Be that as it may, this is no reason for not permitting the additional evidence, which appears to be necessary for correct decision of the question in controversy, namely, whether the land in question was ancestral.
8. For the foregoing reasons, the revision petition is allowed. The additional evidence sought to be produced shall be taken on record subject to payment of Rs. 1500/-as costs. An opportunity shall be given to the opposite party to produce evidence, if any, in rebuttal, which may either be taken by the lower Appellate Court of a report to this effect be obtained through the trial Court within one month of the date of appearance of the parties in the lower Appellate Court. Thereafter the appeal shall be decided according to law expeditiously.
9. The parties through their counsel are directed to appear in the lower Appellate Court on June 3, 1992.