TMI Blog2000 (11) TMI 1238X X X X Extracts X X X X X X X X Extracts X X X X ..... intiffs to adduce additional evidence by the said application. The respondent-plaintiffs filed a suit for (i) specific performance of the agreement to sell dated 30.1.1995, (ii) delivery of vacant possession and (iii) a declaration that the defendant No.1 was an absolute owner of the land measuring 102 kanals and 14 marlas as described in the plaint. In pursuance of the said agreement, it is alleged that the defendants submitted on 7.2.1995 an application to the Income Tax Department for obtaining clearance for sale of the said land which was signed by the plaintiff No.1 and defendant No.1 along with certain other documents attached thereto. After trial, the trial court dismissed the suit against which a regular appeal was filed. In the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct does not seem to have been pursued with and the same learned Judge before whom the matter was listed heard the matter and decided the same. These allegations have been reiterated in the course of the special leave petition. Preliminary objection is raised by the respondents to the effect that the case came up for hearing in the High Court on 28.3.2000 and 25.4.2000, while the representation had been made on 23.3.2000 but not brought to the notice of the learned Judge nor any objection to this effect during the course of the hearing of the matter by the learned Judge was raised before him before the arguments were concluded and, therefore, reiteration of those apprehensions in the course of the special leave petition will tantamount to ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the latest facility was not available at the time when the parties led the evidence before the trial court and if this facility became available only in the year 1999 and if the plaintiff wants to get the disputed documents examined by such Laboratory, it could not be said that it will not be a sufficient cause to permit the plaintiff to adduce additional evidence during the pendency of the appeal. On that basis the learned Judge proceeded to order that it was not appropriate exercise of the discretion vested in the trial court and would require interference by the High Court in the original jurisdiction. Before we proceed further we would like to refer to the scope of an application under Order XLI, Rule 27 CPC. Section 107 CPC enable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (iii) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. In the present case, it is not the case of either party that the first situation is attracted. So far as the second circumstance noticed above is concerned, question of exercise of due diligence would not arise because the concerned scientific laboratory from which examination is sought to be made itself was not in existence at the time of trial and so that clause is also not attracted. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court could, in exercise of its power under Section 115 CPC, could have interfered with such an order, particularly when the whole appeal is not before the court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order XLI, Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC. In this regard, we may notice the decision of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te court had deemed it necessary to allow the parties to adduce additional evidence, it ought to have examined the entire evidence and when it was rejecting the application, it felt that the evidence already on record was sufficient one way or the other. In that view of the matter, we do not wish to express any opinion on this matter as it is open to the parties to urge that aspect of the case in the appeal that is pending before the High Court. We, therefore, allow this appeal, set aside the order made by the High Court and restore that of the first appellate court. However, we are making it clear that its correctness can be challenged by the aggrieved party in the appeal that is pending before the High Court, if permissible under law. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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