Devi Prasad Singh, J. - (1.) HEARD Mr. U.S. Sahai, learned Counsel for the petitioner. None appears for the respondents.
(2.) THE plaintiff petitioner entered into an agreement for transfer of land/house with one Smt. Jagdei on 25.12.1971. On account of non -compliance of agreement, the plaintiff petitioner filed a suit for specific performance of contract which was registered as regular suit No. 122 of 1974. The suit was dismissed on 12.5.1980. Feeling aggrieved with the dismissal of the suit, the plaintiff petitioner filed an appeal under Section CPC which was registered as appeal No. 191 of 1980. An application was moved for recall of the witness Smt. Bachchi Dei at first appellate stage. The application was allowed by the then Presiding Officer and the statement of Smt. Bachchi Dei was recorded on 9.12.1985. In the meantime, the Presiding Officer changed and Mr. Lavkush Saran Shukla joined as Ist Addl. District Judge, Gonda. An application dated 11.8.1986 (Annexure -1) was moved by Shri Moti Lal, defendant with the prayer that the entire proceeding including the statement dated 9.12.1985 may be recalled. It was stated that the statement was recorded in absence of the counsel. The application dated 11.8.1986 was allowed by the learned First Addl. District Judge, Gonda by the impugned order dated 9.9.1986, hence the present writ petition.
(3.) WHILE assailing the order in question, it has been submitted by the learned Counsel for the petitioner that the Court was well within its jurisdiction while allowing the application for recall of witness Smt. Bachchi Dei. Attention of this Court has been invited to Section CPC which provides that the appellate court shall have power to take additional evidence or require such evidence to be taken. Sub -section (2) of Section further provides that the appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction. For convenience, Section is reproduced as below: 107. Powers of Appellate Court. - (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.;