VIVEK KUMAR BIRLA,J. - (1.) Heard learned counsel for the plaintiff-petitioner and Sri Sumit Daga, learned counsel appearing for the defendant-respondent.
(2.) Present petition has been filed for setting aside the order dated 21.4.2018 passed by the Additional District Judge, Court No. 5, Meerut in First Appeal No. 530 of 1992 (Ajay Pal Rastogi v. Smt. Poonam Rastogi ). Further prayer has been made seeking direction to the court below to take the additional evidence filed with the application dated 5.8.2015 on record.
(3.) The original suit filed by the plaintiff-petitioner was dismissed on 1.5.1992. Against which Civil Appeal No. 530 of 1992 was filed. Earlier, the application was filed by the petitioner under Order 41 Rule 27 CPC for taking some additional evidence on record, which was rejected. The petitioner filed Writ C.No. 38315 of 2000 (Ajai Pal Rastogi v. The Xiii A.D.J. and another ), which was dismissed vide order dated 1.4.2015, which is quoted as under:- "This petition has been filed under Article 226 of the Constitution of India, challenging an order passed by appellate court, rejecting the application for taking on record additional evidence. In view of the law settled by the Apex Court vide judgment dated 26.2.2015, passed in Civil Appeal No. 2548 of 2009 connected with Special Leave Petition (C) No. 25828 of 2013 Radhey Shyam and another v. Chhabi Nath and others , that judicial orders of civil court are amenable to writ jurisdiction under Article 226 of the Constitution of India, which has been followed by this Court in Writ Petition No. 11761 of 2015 Thakur Prasad v. Beni Prasad (now deceased) and others, decided on 25.3.2015 , the present petition under Article 226 of the Constitution of India is maintainable. Learned counsel for the petitioner submits that he may be permitted to convert this petition under Article 227 of the Constitution of India. This court finds that by the order impugned, appellate court has rejected the application of the petitioner for taking on record additional evidence. Order impugned arises out of interlocutory proceedings, as and when appeal itself is finally decided and if petitioner feels aggrieved, it would be open for him to take rejection of additional evidence, as a ground, in further challenge available to him, in accordance with law. This court finds that necessary ingredients to invoke jurisdiction under Article 227 of the Constitution of India also is available in the facts and circumstances of the case, inasmuch as there is no failure of justice nor any jurisdictional issue is involved, and therefore, this court declines to grant liberty to invoke jurisdiction of this court under Article 227 of the Constitution of India. Even otherwise, proceedings of appeal have remained pending, pursuant to the interim order granted in the present petition, since the year 2000, and therefore, it would be appropriate to interfere in the matter. In view of the above, the present petition fails and is dismissed. Interim order, granted earlier, stands discharged.";