- (1.) PETITIONERS Shri Kishore and Bacchan Babu as well as respondent Roop Kishore are all real brothers having their landed properties situated in the village. After the death of their father, they inherited the property in the ratio of 1/3rd share each. According to the petitioners, on 27.2.2001 a family partition took place between the three brothers in presence of the Panchayat and other witnesses, in which the respondent Roop Kishore left his 1/3rd share in favour of the petitioners, after taking a sum of Rs. 22,000/- in lieu of his share in the property. Thereafter, on 12.3.2001, respondent Roop Kishore filed Original Suit no. 126 of 2001 against the petitioners in the court of Civil Judge (Junior Division), Aligarh for partition of his 1/3rd share in the joint property. The said suit was contested by the defendant-petitioners. The trial court, vide its judgement and Order dated 16.11.2002, dismissed the suit of the plaintiff-respondent with cost. Against the said judgement and Order of the trial court, the plaintiff-respondent Roop Kishore filed appeal on 24.12.2002, which was registered as Civil Appeal No.10 of 2003 in the court of District Judge, Aligarh. After lapse of more than 15 months of fling of the appeal, the respondent Roop Kishore filed an application under Order 41 Rule 27 C.P.C before the appellate court for obtaining the opinion of Hand- writing expert with regard to his signatures on the partition deed dated 27.2.2001. Petitioners filed objections to the said application and after hearing the learned counsel for the parties, the appellate court, vide its order dated 27.9.2004, allowed the said application of the respondent. Aggrieved by the said order, the petitioners have filed this writ petition.
(2.) I have heard Sri Amit Saxena, learned counsel for the petitioners, as well as Sri Sudhir Dixit, learned counsel for the respondent and have perused the record. Counter and rejoinder affidavits have been exchanged and with the consent of the learned counsel for the parties, this writ petition is being disposed of at this stage. The respondent can adduce additional evidence at the appellate stage only under the provisions of Order 41 Rule 27 C.P.C., which reads as under:- "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 judgement, 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, shall record the reason for its admission."
(3.) THE contention of the defendant-petitioners is that the application for adducing additional evidence at the appellate stage could have been entertained only if the same was within the ambit of the provisions of Order 41 Rule 27 C.P.C. It was submitted that since in the present case, the conditions of the said rule were not fulfilled, the appellate court has erred in law in allowing the same and that, accordingly, the impugned order was liable to be quashed.;