Mrs. Bhulia Devi and Others Vs Smt. Sheela Devi and Others

Sat Pal, J.@mdashThis petition has been directed against the order dated 4.8.1997 passed by the Additional District Judge, Faridabad. By this order, the learned Additional District Judge has allowed the application filed by the respondents under Order 41 Rule 27 CPC seeking permission of the court to lead additional evidence. Notice of this petition was issued to the respondents.

2. Mr. Bhandari, the learned counsel appearing on behalf of the petitioners submits that the impugned order passed by the learned Additional District Judge is not legally sustainable inasmuch as, in the present case the respondents failed to comply with the condition precedent to the effect that despite due diligence they could not lead this evidence at the relevant stage. He submitted that the present case squarely fell under Order 41 Rule 27(aa) and since the aforesaid condition has not been complied with in the present case, the impugned order was liable to be set aside. In support of his submission, the learned counsel has placed reliance on a judgment of the Supreme Court in the case Jaipur Development Authority Vs. Smt. Kailashwati Devi,

3. Mr. Sandhu, the learned counsel appearing on behalf of the respondents, however, submits that in terms of the law laid down by the Supreme Court in the case of Billa Jagan Mohan Reddy and Another Vs. Billa Sanjeeva Reddy and Others, the respondents could be permitted to bring on record a document which was relevant for the proper adjudication of the case. He, therefore, contends that since the Will is a document which has been held to be relevant by the learned lower appellate court, there is no merit in this petition. *

4. After hearing the learned counsel for the parties and having perused the impugned order, I do not find any infirmity in the impugned order dated 27.5.1997 passed by the learned lower appellate court. It is correct that the learned lower appellate court has observed that the appellants have been negligent in not leading this evidence at the relevant stage but at the same time, the learned lower appellate court has observed that in view of the facts of the case, the whole controversy revolves around the Will which is necessary for proper adjudication of the case. Since the learned lower appellate court itself has observed that for adjudication of the case, the Will in question has to be considered as evidence, I am of the view that the present case falls under Order 41 Rule 27(b) and not Order 41 Rule 27(aa). In view of these facts, the present case is squarely covered by a judgment of the Supreme Court in the case of Gurdev Singh and others Vs. Mehnga Ram and another, .

5. Accordingly the petition is dismissed. It is, however, made clear that the petitioner shall be at liberty to raise the point which has been raised in the present petition in Second Appeal, in case the first appeal is decided against the petitioner. With this observation, the petition stands disposed of

6. The parties are directed to appear through their counsel before the learned lower appellate Court on 25.5.1998.