SHARMA, J. - (1.) CONCURRENT findings arrived at by the learned courts below have been assailed by the State of Rajasthan and another, the appellants herein, in the instant second appeal which was filed on August 27, 1991. An application under Order 41 Rule 27 of the Code of Civil Procedure has also been submitted by the appellants today for taking the additional documents on record.
(2.) MR. Mohd. Rafiq, learned Additional Advocate General urged that since the trial court proceeded ex-parte, the appellants could not produce evidence and the suit of the plaintiff respondent was decreed. The first appellate court also did not properly appreciate the provisions contained in Order 9 Rule 7 CPC and the appeal was dismissed, therefore, opportunity to adduce evidence may be provided to the appellants in the interest of keeping the stream of justice pure and clear and findings under appeal should not be permitted to assume finality without the examination of the witnesses of the appellants. As per the facts pleaded in the plaint the tenanted premises was let out on oral tenancy by the respondent (for short `landlord') to the appellants (for short `defendant') on a rent of Rs. 30/- per month in the year 1962. The Estate Officer, Public Works Department demanded the certificate of ownership from the Landlord, who submitted the decision of City Survey and other documents on June 25, 1962. The acquisition proceedings were also initiated in regard to the tenanted premises but on December 9, 1968 the same was dropped. The defendant on October 14, 1973 cut the Neem-tree and started to raise construction without the permission of Landlord and changed the nature of the building. Since the defendant did not pay any rent from March 1, 1962 to February 28, 1974, the Landlord instituted the suit for ejectment and recovery of Rs. 4320/- after serving notice under Section 80 CPC. In the written statement the defendant averred that the premises did not belong to landlord and it was never let out. No rent deed was ever executed. The premises belonged to the State Government where Maharaja Girls School was functioning. As many as eight issues were framed out of the pleadings of the parties. The Landlord thereafter examined five witnesses and got exhibited 38 documents. On October 12, 1982 when the case was posted for cross examination of Landlord's witness PW. 5, nobody appeared on behalf of the defendant and the trial court after closing the right of defendant to cross examine the witness, proceeded exparte and posted the case for pronouncement of judgment. On October 12, 1982 application under Order 9 Rule 7 CPC was filed by the defendant for setting aside the exparte proceedings, but on December 1, 1982 when the application was listed for arguments, the defendant and his counsel again did not appear and the application was dismissed in default. Another application moved by the defendant was also dismissed on December 20, 1982 and thereafter the suit of the landlord was decreed on January 4, 1983. The first appeal preferred by the defendant against the decree of the trial Court was dismissed by the defendant against the decree of the trial court was dismissed by the appellate court on May 17, 1991. It is against these findings that the instant second appeal has been filed by the defendant. Following substantial questions of law were formulated by this court on April 22, 1997:- " (1) Whether it is open to the appellant to assail the concurrent findings of the courts below by way of second appeal particularly when the courts below have concurrently held that the property, which is subject matter of the suit is not the property owned by the State and is not a part of the school premises? (2) Whether the Rajasthan Premises (Rent, Control & Eviction) Act is not applicable to the property in question? (3) Whether the Civil suit, which was filed by the plaintiff before the learned Munsif was maintainable in absence of notice u/s. 106 of the Transfer of Property Act? (4) Whether the suit was maintainable against the State in absence of proper notice u/s. 80 CPC? and (5) Whether the findings recorded by the Courts below can be said to be perverse and contrary to the record?" APPLICATION UNDER ORDER 41 RULE 27 CPC: Before adverting to the substantial questions of law, I at the outset, deem it appropriate to dispose of the application of the defendant filed under Order 41 Rule 27 CPC.
(3.) IT is well settled that production of additional evidence under Order 41 Rule 27 is permitted only under three circumstances which are:- Where (i) the trial court had refused to admit the evidence though it ought to have been admitted; (ii) the evidence was not available to the party despite exercise of due diligence; and (iii) the appellate court required the additional evidence so as to enable it to pronounce the judgment or for any other substantial cause of like nature. All the litigants before the Court of law are equal. The State can not be granted any greater indulgence in the admission of additional evidence than a private litigant as is held by their Lordships of the Supreme Court in State of U. P. vs. Manbodhan Lal Srivastava (AIR 1957 SC 912 ). It is inexplicable as to why the defendant did not choose to file application under Order 41 Rule 27 before the first appellate court. Even now after 14 years of filing of the instant second appeal the defendant suddenly woke up and made the application. In my considered opinion when party failed to apply under Order 41 Rule 27 in the first appellate Court, denial of opportunity to adduce additional evidence can not be urged in second appeal. If no sufficient cause is explained for not placing the documents on the record of the courts below earlier, the documents cannot be allowed to be filed in the second appellate court as additional evidence. In A. Thiraveyam Anvial vs. Vellayam (1996 AIHC 3691 (Madras) the High Court refused to entertain an application for receiving additional evidence which was filed a day before the hearing after the lapse of 13 years after the filing of the second appeal. In the instant matter also the application has been filed today i. e. After 14 years of filing of the second appeal. ;