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Radheshyam & Others v. Additional District & Sessions Judge & Others - WRIT - C No. - 52187 of 2007 [2007] RD-AH 16889 (25 October 2007)

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Hon. Dilip Gupta, J.

The petitioner is the defendant in Original Suit No. 691 of 1999 that had been filed for cancellation of the sale-deed dated 12.7.1999 in respect of land of Arazi Nos. 158 and 148 on the basis that the plaintiff was the owner in view of the will deed. The Trial Court decreed the suit. The defendant filed Civil Appeal No. 20 of 2005 and during the pendency of the Civil Appeal three applications were filed by him. The first application (57 G) was for amending the written-statement while the second application (59 G) and the third application (63 G) were for framing an additional issue and for bringing on record additional evidence respectively.

The amendment that was sought in the written-statement was for withdrawal of the admission made by the defendant that the Court has the jurisdiction and for raising the plea that the suit was barred under Section 331 of the U.P. Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred to as the 'Act'). The Court has rejected the amendment on the ground that it could not be permitted to be taken up in the appeal particularly when the defendant admitted that the Court had the jurisdiction to entertain the suit. This apart, under Section 331 (1-A) of the Act such objection cannot be entertained by any Appellate or Revisional Court unless the objection was taken in the Court of First Instance at the earliest opportunity and in all cases where issues are settled, at or before such settlement and unless there has been a consequence failure of justice. The Court below has, therefore, not committed any illegality in rejecting the amendment application.

The second application was for framing an additional issue, namely, the plaintiff was the owner in possession of the property on the basis of the will deed. The Court below has rejected this application on the ground that the suit had been filed for the cancellation of the sale-deed and it was for the plaintiff to prove his case on the basis of the evidence led by him. Learned counsel for the petitioners has not been able to point out any infirmity in the said order.

The third application that had been filed was for bringing on record additional evidence. The Court below has rejected the application on the ground that the appellant could not establish the condition set out in Order 41 Rule 27 (1) (aa) of the Code of Criminal Procedure were satisfied. Under the said provision, the parties seeking to produce additional evidence have to establish 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 that time when the decree appealed against was passed. Learned counsel for the petitioners has failed to point out any infirmity in the said order. The order dated 27.9.2007 passed by the learned Additional District Judge, Court No.2, Kanpur Dehat, therefore, does not call for any interference.

The writ petition is, accordingly, dismissed.

Dt/- 25.10.2007



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