Rajan Roy, J. - (1.) Heard Sri Prabhat Kumar learned counsel for the petitioner and Sri Shiv Pal Singh learned counsel for the opposite parties 3 to 5 who are the contesting opposite parties. The learned counsel agree that the opposite parties 2,6,7,8 and 9 are proforma parties being the legal heirs of late Ram Dayal, the husband of the petitioner herein.
(2.) This is a petition under Article 227 of the Constitution of India challenging an order dated 27.07.2017 passed by the Additional District & Sessions Judge/SCCC II, Ambedkar Nagar in Civil Appeal No. 100 of 2008 (Smt. Fulra Devi vs. Moti Lal & others by which the application of the petitioner-appellant under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') has been dismissed.
(3.) Two points canvassed by Sri Prabhat Kumar learned Advocate firstly, the application under Order XLI Rule 27 CPC could not have been considered and decided before the date of 'final hearing' as at this stage there was no question of assessing the evidence led before the trial court nor for the appellate court to arrive at a conclusion as to whether there was any lacuna in the evidence based on which it could arrive at a further conclusion that it required additional evidence to pronounce its judgment, secondly, on account of lack of proper advice by the counsel, in a suit for cancellation of sale-deed, the expert opinion rebutting the opinion adduced in evidence by the plaintiff father-in-law, to belie the assertion that that the sale deed did not bear his signatures and to show that it did bear his signatures, could not be led, and substantial justice required that it be allowed to be led.;