B.L. Yadav, J. - (1.) THIS is Defendant's second appeal in a suit for permanent injunction restraining the Defendant appellant from interfering with the plaintiff's possession over the land in dispute. Earlier two suits being suit No. 207 of 1968 and 362 of 1975 were also filed and they were decided in favour of plaintiff. Both the courts below have decreed present suit.
(2.) LEARNED Counsel for the appellant urged that some additional evidence was filed before the lower appellate court after exercising power under Order 41 Rule 27 of the Code of Civil Procedure (for short the Code) but that additional evidence has not been mentioned in the judgment of the lower appellate court. Reliance was placed on the provision of Rule 29 of Order 41 of the Code, which is extracted below. 29. POINTS TO BE DEFINED AND RECORDED: Where additional evidence is allowed or directed to be taken, the Appellate Court shall specify the points to which the evidence is to be con -fined. and record on its proceedings the points so specified. The aforesaid provisions may be read along with Order 41 Rule 27 of the Code and also along with the amendments made by Allahabad High Court. The additional evidence can be taken by an appellate court only after complying with these provisions and after recording reasons. Not only the reasons have to be recorded for receiving additional evidence consistent with the provisions of Rule 27 of Order 41 read in the light of U.P. Amendment but the Appellate Court must also specify the points for which the additional evidence is to be confined. It is not open to the Appellate Court just to take additional evidence and rely upon the same without specifying as to for which points the evidence has been taken. This has to be recorded in the proceedings of the Court. In case it is not done the procedure adopted would be irregular.
(3.) IT may be stated that the additional evidence itself can not be taken unless the appellate court has examined the entire evidence as it stands and when some inherent lacuna or defect becomes apparent but certainly not when a discovery is made out side the court of a fresh evidence and the application is made to import it. Before relying upon the additional evidence the procedure under Order 41 Rule 29 has to be followed i.e. the appellate court has to specify in the proceedings the points on which the additional evidence should be confined. But this was not done. The additional evidence so accepted can be relied upon only after following the procedure under Order 41 Rule 29. As this was not done the additional evidence was correctly not relied upon. See Arjan Singh v. Kartar Singh : AIR 1951 SC 193, P.P.C. Pillai v. O. Devassia : AIR 1967 Ker 83.;