S.D. Agarwala, J. - (1.) THIS is a petition under Article 226 of the Constitution of India. The dispute relates to mutation proceedings in respect of house No. D -36/229, 230 and 233 situate in Mohalla August Hunda, Varanasi. Originally house No. 36/229, 36/230 were entered in the name of one Bindeshri Pathak in the municipal records. House No. 36/233 was recorded in the name of deity. Bindeshri Pathak died. Respondent No. 1 applied for mutation on her name in respect of the aforesaid properties on the ground that she is the sole heir of the deceased on the basis of a will dated 7 -6 -1982. The Petitioner contested this proceeding and his case was that in fact, he is the only legal heir of the deceased.
(2.) THE Nagar Mahapalika, Varanasi allowed the application of the Respondent No. 1. Aggrieved, the Petitioner filed an appeal before the Judge Small Cause Court, Varanasi. The Judge Small Causes Court, Varanasi allowed the appeal and set aside the order of the Nagar Mahapalika. Against the order of the Judge Small Causes Court a second appeal was filed by the Respondent No. 1 in the Court of District Judge, Varanasi being mutation second appeal No. 60 of 1983. During the pendency of the appeal, the Appellant Smt. Phoolmani Devi moved on application under Order 41 Rule 27 of the Code of Civil Procedure for admitting certain papers on the ground that the Appellant is a widow and could not rile certain papers in the lower appellate court. It was also submitted that certain papers in the custody of the Appellant's son -in -law, who mostly resided out of station, had been misplaced and the said papers were traced out and were being filed as additional evidence. The IIIrd Additional District Judge, Varanasi before whom the appeal is pending, allowed the application under Order 41 Rule 27 Code of Civil Procedure by an order dated 29 -11 -1984. This order dated 29 -11 -1984 has been impugned in the present petition. I have heard the Learned Counsel for the parties. Learned Counsel for the Petitioner has contended that it was not open to the appellate court at the stage of second appeal to permit additional evidence to be taken. It has been further urged that no reasons have been given for accepting the documents sought to be produced as additional evidence and as such the order is vitiated.
(3.) IN so far as the first contention of the Learned Counsel is concerned, under Order 41 Rule 27 Code of Civil Procedure, the appellate court is entitled to allow additional evidence or document to be produced in the circumstances mentioned in the said Rule. Order 41 -A has been added by the Allahabad High Court as additional Order in the Code of Civil Procedure. Order 41 -A Rule 1 provides as follows: 1. Extent: - The rules contained in this Order shall apply to appeals in the High Court notwithstanding anything to the contrary contained in Order XII or any other Order and the rules contained in Order XLI shall be deemed to have been modified or repealed in their application to such appeals to the extent of their inconsistency or repugnancy or as indicated herein. The above mentioned rule of Order 41 -A clearly contemplates that the rules contained in Order 41 shall be deemed to have been modified or repealed in their application to second appeals to the extent of their inconsistency or repugnancy or as indicated in Order 41 -A but otherwise the rules of Order 41 would apply in the case of second appeals also.;