Court No. - 4 Case :- WRIT - C No. - 2038 of 2010 Petitioner :- Mohar Singh Respondent :- Bhagwan Das Petitioner Counsel :- Praveen Kumar Srivastava Hon'ble Krishna Murari, J.
Heard learned counsel for the petitioner.
Suit filed by the plaintiffs-petitioner for permanent
injunction to restrain the defendants-respondent
from interfering over the suit property or to
interfere in raising construction over the same was
dismissed by the trial court vide judgment and
decree dated 12.4.2002 on the finding that
plaintiffs-petitioner have failed to establish that the
suit property described in the plaint was of plots no.
503, 504 and 507 of which they claim to be
Bhumidhar. The plaintiffs-petitioner went up in
appeal. During the pendency of the appeal, an
application dated 31.07.2009 was filed under order
XLI Rule 27 of the Code of Civil Procedure, 1908
(for short the ‘Code) to take on record sale deeds by
which they purchased the suit property as additional
evidence. Another application of date was moved
with the prayer to issue survey commission to
inspect the suit property and submit a report. Lower
appellate court vide impugned order dated
24.08.2009 has dismissed both the applications.
In so far as the application under Order XLI Rule
27 of the Code is concerned, the same has been
rejected on the ground that since there is no dispute
with respect to rights and title of the plaintiffs in
plot no. 503, 504 and 507 as such there was hardly
any necessity to accept the sale deed as additional
evidence at this belated stage. In so far as issuance
of survey commission is concerned, the court below
rejected the application on the ground that
commission was issued by the trial court who after
making spot inspection submitted report and found
that defendants-respondent were in possession over
the same. The said report was also confirmed and
after the appeal remained pending more than seven
years, there was no justification to issue survey
commission and re-open the entire proceedings
from the stage of evidence between the parties.
Learned counsel for the petitioner has urged that in
the absence of additional evidence being taken on
record and the report of survey commission, the suit
cannot be decided effectively between the parties. It
has further been urged that in view of the judgment
of the Hon’ble Apex Court in the case of North
Eastern Railway Administration, Gorakhpur Vs.
Bhagwan Das (D) by L. Rs. – 2008 All. Civil
Journal 2337 additional evidence can be tendered
and is liable to be accepted at any stage.
I have considered the arguments advanced by the
learned counsel for the petitioner and perused the
record.
Reliance placed by the learned counsel for the
petitioner in the case of North Eastern Railway
Administration, Gorakhpur (supra) is totally mis-
founded and the arguments have been advanced by
misreading the said judgment. The Hon’ble Apex
Court has not held that additional evidence tendered
at any stage of the proceedings is liable to be
accepted. On the contrary, what has been held is
that additional evidence has to be accepted if it falls
within the four corners of Order XLI Rule 27 CPC.
In the facts of the said case, the Hon’ble Apex Court
while interpreting clause (b) of sub-section (1) of
Rule 27, Order XLI C. P. C. held that additional
evidence tendered at the stage of second appeal
before the High Court was liable to be accepted.
This is no such general law laid down as argued by
the learned counsel for the petitioner that additional
evidence tendered at any stage is liable to be
accepted.
Since in the case in hand, the lower appellate court
found that there was no dispute with regard to
ownership and title of the plaintiffs-petitioner over
the plots described in the plaint, the sale deed
sought to be filed by way of additional evidence
would be of no help in pronouncing the judgment
rightly rejected the same. The plaintiffs-petitioner
failed to make any application before the trial court
for the same. On the contrary the commissioner
report was confirmed which was also not
challenged by him.
It is well settled that the litigant who has been
unsuccessful in the lower court cannot be permitted
to patch up the weak parts of his case and fill up
omissions in the court of appeal. As a matter of fact
by getting the survey commission, the petitioner
wanted to fill up the lacuna of his case and to
generate the evidence which cannot be permitted
and that too at the appellate stage and the court
below has not committed any illegally in rejecting
the application.
In view of the above, there is no scope for
interference in the impugned order. The writ
petition fails and accordingly stands dismissed.
Order Date :- 21.1.2010
Dcs