- (1.) Heard Mr. D.C. Mukherji, learned Counsel for the Petitioners and Mr. S.K. Mehrotra, learned Counsel for the opposite parties 2 to 7. The Petitioners have challenged the order dated 30.1.2010 passed by the Additional District Judge, Court No. 4, Faizabad in Civil Appeal No. 4 of 2010 along with other connected Civil Appeal No. 61 of 2009.
(2.) By means of order impugned the learned Additional District Judge, court No. 4, Faizabad has remitted the matter to the court below to give findings on the issue framed by appellate court after providing opportunity to the parties to adduce evidence and after summoning the proceedings register as prayed in application 45 Ga filed at the appellate stage moved by the Plaintiff/Appellant. The issues framed by the appellate court are reproduced hereinunder: 1. Whether the said agreement to sale is against the provisions of the Trust-deed of Manohar Trust? 2. Whether the permission for sale of the property in question was not obtained from the management committee prior to post alienation the same to the Defendant Nos. 2 to 6 and registration of the agreement to sale?
(3.) The learned Counsel for the Petitioners submits that opposite parties 2 to 7 did not make any application for summoning the proceeding register before the trial court. He pointed out that the provisions of production of additional evidence before the appellate court are provided under Section 41 Rule 27 CPC, which are reproduced hereinunder: (i) The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate court but if: a) The court from whose decree, the appeal is preferred has refused to admit evidence which ought to have been admitted, or aa) the party seeking to produce additional evidence establishes that notwithstanding the exercise of due 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; b) The appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment for any other substantial clause. The appellate court may allow such evidence or document to be produced or witnesses to be examined. 2. Wherever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission.;