A.K. Singh, J. - (1.) Heard the learned counsel for the petitioner and the learned counsel for the non-petitioner.
(2.) This revision petition is directed against the order dated 23.3.1999 whereby an application filed by the petitioner-plaintiff under Order 41 Rule 27 Civil Procedure Code was rejected. The learned counsel for the petitioner has submitted that the predecessors of the defendant-respondent had moved an application before the Municipal Council on 19.7.1962 seeking permission for certain construction work and that application had been rejected. It is further submitted by him that the plaintiff moved an application before the Municipal Council for obtaining the copies of certain documents present on the file of that application but the certified copies of the documents were not supplied to him. He, therefore moved an application under Order 41 Rule 27 Civil Procedure Code before the learned first appellate Court praying that the record of the Municipal Council be summoned. The application moved by the plaintiff- petitioner was opposed by the defendant-respondent on the ground that no application had been filed before the trial Court and, therefore, the application under Order 41 Rule 27 Civil Procedure Code was not maintainable. It is further submitted by the learned counsel for the petitioner that by letter dated 17.4.1999 (which was produced before the Court for inspection), the Municipal Council has admitted that an application had been received but the relevant file was not deposited in the record room of the Municipal Council and, therefore, copies of the desired documents could not be supplied. In these circumstances, the learned counsel for the petitioner has prayed that this revision petition be admitted and the impugned order be quashed and set aside and the first appellate Court be directed to call for the record of the Municipal Council in the interest of justice to peruse the documents filed in that file.
(3.) The learned counsel for the non-petitioner Nos. 1 and 2 has submitted that this revision petitioner is not maintainable as the application moved by the petitioner before the lower Court was not an application under Order 41 Rule 27 C.P.C and the impugned order was quite correct. Rule 27ORDER41 Civil Procedure Code reads - "Production of additional evidence in Appellate Court - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But (a) the Court from whose decree the appeal is preferred has refused to admit evidence with ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.";