B. R. ARORA, J. - (1.) THIS appeal is directed against the order dated July 27, 1991, passed by the Additional Civil Judge, Ratangarh, by which the learned Additional Civil Judge allowed the three applications dated 16-1-86, 21-4-86 and 4-3-91, filed by Mala Ram and the application dated 16-7-87 filed by Madan Lal under Order 41 rule 27 C. P. C and allowed to take four documents on record. The learned Additional Civil Judge allowed the appeal, set-aside the decree and judgment dated 15-3-85, passed by the learned Munsif and Judicial Magistrate, First Class, Ratangarh, and remitted the case to the trial Court for deciding it afresh after taking on record the documents filed by the plaintiff.
(2.) PLAINTIFF Mala Ram filed a suit in the Court of the Munsif and Judicial Magistrate, First Class, Ratangarh, against the defendant for eviction and arrears of rent. The suit was filed on the basis of reasonable and bonafide necessity and the default in payment of rent. The suit was contested by the defendant Madan Lal, who denied the averments made in the plaint. The learned Munsif, after trial, came to the conclusion that no default has been committed by the defendant and the plaintiff failed to prove any reasonable and bonafide necessity with respect to the suit property. Dissatisfied with the decree and judgment dated September 15, 1985, passed by the learned Munsif and Judicial Magistrate, Ratangarh, the plaintiff preferred an appeal before the District Judge, Churu, which was transferred for disposal to the Court of the Additional Civil Judge, Ratangarh. During the pendency of the appeal, three applications were moved by the appellant-plaintiff on 16-1-86, 21-4-86 and 4-3-91, under Order 41 rule 27 C. P. C. for taking the additional evidence on record, which he could not produce inrpite of the exercise of due diligence. The learned Munsif allowed all the three applications filed by the plaintiff-appellant and ordered for taking the documents on record. By the same order, without considering the merit or de-merit of the case, the learned Additional Civil Judge set-aside the decree and judgement passed by the trial Court and remitted the case to the trial Court. The documents which have been ordered to be taken on record are four in number. The first document is the agreement between Jaichand Lal and Mala Ram, which is dated 14-12-77. This agreement was arrived at between the plaintiff and his brother Jaichand Lal, which he could not produce inspite of due diligence as the document was with Jaichand Lal and on account of differences between him and his brother, Jaichand Lal could not give the document to him and, therefore, he wants to produce the same at this stage. This documents was admittedly in the knowledge of the plaintiff and a specific plea was taken in the written statement, also, but, the document could not be produced. The document, which was admittedly in the knowledge of the plaintiff and he was the signatory to that document, was not produced earlier and he cannot be allowed to produce that document at the later stage during the course of the appeal merely to fill-up the gaps left - out by the party during the trial. Order 41 rule 27 C. P. C. never meant o fill-up the lacuna or the gaps left-out by the parties during the trial. The party can be permitted to lead additional evidence which inspite of due diligence could not be produced by him and which is necessary for the proper decision of the case. The document which was in the knowledge of the plaintiff, if he could not produce the same on account of his negligence then he cannot be permitted to produce the same later on. The learned Civil Judge was, therefore, not justified in taking this agreement dated 14-12-87 on record. Similar is the case with respect to the notice of eviction given by Shanti Devi to the plaintiff. The notice was served upon the plaintiff Mala Ram and it was in his possession during the pendency of the suit. If he wanted to produce the same, he could have produced it. If he did not take care to produce this document, on which he wants to place reliance, then, now, at this stage, he cannot be permitted to do so, so as to fill-up the lacuna or gap left-out by him during the trial. The learned lower Court was, therefore, not justified in allowing this document to be taken on record under Order 41 rule 27 C. P. C. This was never the intention of the provisions of Order 41 rule 27 C. P. C. Similar is the case with respect to the rent-note dated 5-5-79, executed by Mala Ram in favour of Smt. Shanti Devi. That document was, also, in possession of the plaintiff and a specific plea with respect to all these three documents, mentioned above, was taken by the plaintiff in the plaint itself, but those documents were not produced by the plaintiff during the trial and if the suit was dismissed then he cannot be permitted to adduce evidence on this behalf during the pendency of the appeal under Order 4 rule 2 C. P. C. These documents were available with him during the trial but were not produced and, therefore, the plaintiff cannot be allowed to produce these documents to fill-up the gaps and lacuna left-out by him. The learned lower Court was, therefore, not justified in taking this document, also, on record under Order 41 rule 27 C. P. C. Thus, the order passed by the learned lower Court for allowing the plaintiff to adduce additional evidence concerning the rent-note, notice and the agreement, deserves to be quashed and set-aside. Now, so far as the judgment dated 21-9-90, passed by the Munsif and Judicial Magistrate, First Class, Ratangarh, is concerned, that was passed by the trial Court during the psndency of the appeal and the Court is empowered to take subsequent events into consideration. The documents will enable the Court to pronounce the judgment and have a material bearing on the case, and, therefore, the learned Additional Civil Judge was justified in allowing the application under Order 41 rule 27 C. P. C. and taking this document on record. The order passed by the learned lower Court, therefore, does not require any interference so far as this document is concerned.
(3.) THE next question, which requires consideration is that when once the documents were taken on record, the learned lower Court was justified in setting-aside the decree and judgment passed by the trial Court without applying its mind to the merit of the case. THE learned lower appellate Court should have considered the material on record and only after considering the case on merit, it could have dismissed or allowed the appeal as it stands. While exercising the powers under Order 41 rule 27 C. P. C. the learned lower appellate Court can keep the appeal pending before him or he can directed the trial Court or any other Court subordinate to him, to take such evidence as is required under the law in connection with the new documents taken on record or he himself can record the evidence of the witnesses desired to be examined by the appellant. THE procedure adopted by the learned lower Court quashing and setting aside the decree and judgment and remitting the case for taking the fresh evidence after taking the documents on record, is wholly uncalled-for. THE learned lower appellate Court should have strictly followed the procedure laid down under Order 41 rule 27 C. P. C. and should not have ordered for fresh trial. THE order passed by the learned lower Court, therefore, deserves to be quashed and set-aside. In the result, this appeal, filed by the appellant, is allowed. The application dated 16-1-86 and 31. 4. 86, filed by the plaintiff for taking the agreement dated 14-12-77 and the notice dated 21. 4. 86, well as the rent note dated 5-5-79, set - aside and the decree and judgment dated 15-3-83, passed by the learned Munsif are restored/affirmed and the case is remitted to the trial Court for recording the evidence as desired by the plaintiff, in connection with the documents. .;