DAYA SHANKAR TRIPATHI,J. - (1.) Heard Sri R.K. Tripathi, learned counsel for appellants, Sri Umesh Kumar Tiwari, learned counsel for respondents and perused the record for the purpose of disposal of application under Order XLI Rule 27 read with Section 151 CPC. Sri R.K. Tripathi, learned counsel for appellants-defendants submits that initially Wg. Cdr. Ashok Kumar Sahai-plaintiff/ respondent filed a suit for mandatory injunction registered as Regular Suit No. 473 of 2007 ( Wg. Cdr. Ashok Kumar Sahai (Retd.) Vs. Rajiv Sahai and others), partly decreed by judgment and order dated 27.10.2014 passed by Civil Judge (Sr. Div.), Malihabad, Lucknow, under challenge in the present appeal.
(2.) During the pendency of the this appeal, an application has been moved by the appellants-defendants under Order 41 Rule 27 read with Section 151 CPC. Sri R.K. Tripathi, learned counsel for appellants in order to press the same, placed reliance on paragraph Nos. 4, 5, 6 and 7 of the application, on reproduction reads as under:- "4. That before the Tribal Court amongst others the appellants had categorically stated that the respondent had obtained the judgment dated 21.01.1993 by playing fraud upon the Hon'ble Court and the aforesaid judgement was a nullity in the eyes of law. Despite a very specific averment being made by the appellants no issue was framed by the learned Trial Court in this regard. 5. That the certified copies of respective written statements of the defendants no. 1 and 2 in Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) and the judgment dated 21.01.1993 passed in the same were filed on the records on Regular Suit No. 473 of 2007 before the Trial Court. Further, the counsel for the appellant was of teh view that the written statement were sufficient to demonstrate the fraud played by the respondent in procuring the judgement and decree dated 21.01.1991. 6. That it was solely on the basis of the advise rendered by the counsel of the appellants that the appellants were unable to file the plaint and the order sheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) before the learned Trial Court despite exercise of due diligence and as such are filing the same with the present appeal. 7. That even otherwise the appellants were not aware regarding the averments on the plaint and teh proceedings of the Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) and it was only at the stage of filign of the preent apepal that the appellants realized the relevance of the documents being filed in the shape of additional evidence." ,
(3.) During the pendency of the Regular Suit No. 473 of 2007 ( Wg. Cdr. Ashok Kumar Sahai (Retd.)Vs. Rajiv Sahai and others) by way of evidence, Wg. Cdr. Ashok Kumar Sahai filed written statement as well as decree passed in Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another), however, the plaint and ordersheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) was not filed, so, the same is sought to be brought by way of additional evidence before this Court. Because no issue has been framed in regard to earlier proceedings taken in Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another), as such, the plaint and order-sheet of Regular Suit No. 79 of 1992 (Wg. Cdr. Ashok Kumar Sahai Vs. Dushyant B Sahai and another) were not brought on record during the trial stage. Sri R.K. Tripathi, learned counsel for appellants further submits that the counsel who was appearing on behalf of appellants defendants in Regular Suit No. 473 of 2007 ( Wg. Cdr. Ashok Kumar Sahai Vs. Rajiv Sahai and others) did not advise that the said documents are necessary for adjudication of dispute, hence the same are to be brought on record by way of evidence, as such the same documents may be taken on record by way of additional evidence as per provision of Order XLI rule 27(1)(aa) CPC. In respect to his argument, reliance has been placed on the judgment given by Hon'ble the Apex Court in the case of Municipal Corporation of Greater Bombay Vs. Lala Pancham and others, AIR 1965 SC 1008, ;