Jai Kishan and Others vs Smt. Shanti and Others

L.N. Mittal, J.—Plaintiffs (appellants before lower appellate court) have filed this revision petition under Article 227 of the Constitution of India impugning order dated 29.11.2011, Annexure P/3 passed by learned Additional District Judge, Bhiwani thereby dismissing application Annexure P/1 moved by the petitioners under Order 41 Rule 27 read with section 151 of the CPC (in short, CPC) for producing copy of jamabandi for the year 1957-58 by additional evidence in the pending first appeal. It was alleged that Man Singh adopted Bansi father of the petitioners and in this regard, inheritance mutation has been produced in evidence as Ex. P1. To corroborate the same, jamabandi for the year 1957-58 is sought to be produced by additional evidence. The application was opposed by contesting respondents by filing reply Annexure P/2. It was alleged that requirements of Order 41 Rule 27 read with section 151 CPC are not satisfied and the appellants cannot be permitted to fill up lacuna in their case by additional evidence and it would result in de-novo trial.

I have carefully considered the matter. The petitioners by way of additional evidence simply want to produce copy of jamabandi for the year 1957-58 which is not likely to be fabricated. Moreover, the respondents would get opportunity to lead evidence in rebuttal thereof. The question of de-novo trial would not arise because evidence has already been led by both the parties and only jamabandi is sought to be produced by the petitioners and contesting respondents can be compensated by way of costs.

Resultantly, the instant revision petition is allowed. Impugned order Annexure P/3 passed by lower appellate court is set aside. Application Annexure P/1 filed by the petitioners in the lower appellate court is allowed and petitioners, who are appellants in the lower appellate court, are permitted to produce copy of jamabandi for the year 1957-58 by way of additional evidence subject to payment of Rs. 2500/- as costs precedent.