Kapoor, J.@mdashThe defendant-petitioner is the appellant before the District Judge, jaipur City in a decree for eviction passed against him. During the pendency of the appeal, he moved an application under Order 41 Rule 27 CPC for production of two site plans. This application has been refused by the court below by order dated 20-11-1987 holding that the documents have been submitted in order to make up the deficiency in his case and could not be admitted into evidence. At the same time, it was also observed that the court also does not feel it necessary to take the documents on record for purpose of deciding the suit.
2. The learned counsel for the petitioner has contended that an application under Order 41 Rule 27 CPC has to be deposed at the time of hearing the appeal. Without Knowing the facts and circumstances of the case the court cannot decide as to whether the documents are required to be produced to enable the court to pronounce judgment or for any other substantial cause. As the application has been disposed of without hearing the appeal, the order is said to be without jurisdiction.
3. It may be pointed out that the application moved by the petitioner for production of documents contained the allegations that inspite of exercise of due diligence, he could not procure the site plans which he wants to produce and having obtained the same with some efforts he should be allowed to produce the same. These allegations make it very clear that the application is under Order 41 Rule 27(1)(aa) CPC and not under Sub-clause (b) of this Rule. I have held in Lokchand v. Amarnath S.B. Civil Revision Petition No. 454 of 1986, decided on September 10, 1986 that the party who wishes to produce additional evidence has a right to apply for additional evidence under Sub-clauses (a) and (aa) of Order 41 Rule 27, CPC. The principle that the application under Order 41 Rule 27 CPC should be disposed at the time of hearing of the appeal is applicable only to clause (b) of Order 41 Rule 27, where the appellate court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. It is well settled that admission of additional evidence under Sub-clause (b) is to be heard along with the appeal but this is not applicable in the present case where the application is under Sub-clause (aa).
4. The question whieh arises is whether after having rejected the application which is under Sub-clause (aa) of Order 41 Rule 27 CPC can the court allow additional evidence under Sub-clause (b). This provision would depend upon the requirements of the appellate couit. Normally the rule is that the party to an appeal shall not be entitled to produce additional evidence whether oral or documentary, how ever, if in the circumstances given under Order 41 Rule 27 CPC additional evidence can be allowed then for the applicability of Sub-clause (b), it is the court itself which has to come to a decision that it requires any document to be produced or witness to be examined to enable it to pronounce judgment or for any other substantial cause. When the application was dismissed under Sub-clause (aa) then the provisions of Sub-clause (b) are still available to the court and this provision can be exercised only at the time of hearing of the appeal. If the court considers it proper it can even after the rejection of the application, allow the documents to be produced or may get some other site plans prepared or consider the question of inspecting the site and make a provision of additional evidence according to the requirements of the case.
5. This observations of mine would not amount to saving that the court in this case should act in a particular manner whether to exercise this power or not would depend on hearing the arguments of the case. With these observations this revisions is dismissed.
