- (1.) The only issue which has resulted in filing of the instant writ petition is that the petitioner's right to file rebuttal to the documents filed by the respondents before the Appellate Court has been rejected by the Trial Court. Facts of the case reveal that a suit for permanent prohibitory injunction was filed by the petitioner in which an application for temporary injunction was also filed and the same has been finally rejected against which a Misc. Appeal has been preferred in which an application for interim injunction was filed upon which a an ad-interim direction was issued by the Appellate Court. Objections were filed by the respondents to the said application in which certain fresh documents were brought on record which was never canvassed before the Trial Court. An application was filed by the petitioner before the Appellate Court with a prayer not to take these documents on record but the same has been rejected by the Appellate Court. However, another application came to be filed by the petitioner in which he sought permission to file counter/objection for rebutting the documents filed by the respondents alongwith objection filed against the interim order passed by the Appellate Court. Even though Trial Court has not passed any final order but he has rejected the application without indicating any valid reasons. No detailed order has been passed by the Appellate Court.
(2.) Heard learned Counsel for the parties and perused the materials on record. Two folds prayer have been made by the petitioner firstly, that permitting additional evidence to be taken on record is nothing else but an utter disregard of the procedure prescribed under the provisions of Order XLI, Rule 27 of the Code of Civil Procedure, 1908 (in short C.P.C.). Secondly, even if it is presumed that the Court can take on record any material at the appellate stage, the petitioner has right to rebut those by filing counter to that which right has been refused.
(3.) Before proceeding with the case it is relevant to quote the provisions contained under Order XLI, Rule 27 of C.P.C. which runs as follows: 27. Production of additional evidence in Appellate Court.--(1) 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, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.;