- (1.) PARITOSH K. Mukherjee, J. By means of the present writ petition, the petitioner has challenged the order dated 12th February, 1988 passed by Addi tional District Judge Bareilly, being Annexure VII to the writ petition, in Appeal No. 27 of 1986.
(2.) ALTHOUGH the writ petition has come up for formal admission, but since affidavits have already been exchanged, with the consent of the parties, the case is being disposed of finally in accordance with Rules of the Court. Sri Bipin Sinha, learned counsel for the petitioner contended that the Vth Additional District Judge, Bareilly, the appellate authority, has committed gross eror of jurisdiction in allowing the application for additional evidence, presumably filed under Order XLI, Rule 27 of the Code of Civil Procedure. There is no force in the aforesaid submission. A perusal of the order passed by learned Vth Additional District Judge, Bareilly reveals that he has considered the provisions of Order XLI, Rule 27, C. P. C. by holding that the additional evidence sought to be adduced by the appellant was obviously not within his power or possession and naturally 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, can be allowed to be produced by way of amendment.
(3.) IN my view, it is essential power of appellate court to decide as to whether there is any requirement for the court to take additional evidence even at the stage of appeal, and, such power cannot and should not be taken away, or, interferred with in the writ jurisdiction by this Court. INterference by this court with such power of the appellate court will amount to total abuse of jurisdiction conferred under Article 226 of the Constitution. In the result, the writ petition is dismissed. This will, however, not take away the right of the petitioner to raise such objection against the additional evidence at the time of final hearing. So far as merits of the case is concerned, this court refrains itself from making any comments.;