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Sumer v. Satya Narain & Others - WRIT - C No. 63337 of 2005 [2005] RD-AH 3610 (26 September 2005)


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"Court No. 4"

Civil Misc. Writ Petition No. 63337 of 2005.

Sumer                                                                                              .............Petitioner.


Satya Narain and others                                                                ........Respondents.


Hon'ble Anjani Kumar, J.

Heard learned counsel appearing on behalf of the petitioner-plaintiff.

The petitioner-plaintiff aggrieved by an order passed by the lower appellate Court dated 28th July, 2005, copy whereof is annexed as Annexure-'VII' to the writ petition, whereby the lower appellate Court rejected the application 22 Ga filed by the petitioner-plaintiff under Order 41, Rule 27 of the Code of Civil Procedure during the pendency of the appeal, approached this Court by means of present writ petition under Article 226 of the Constitution of India.

The petitioner-plaintiff filed a suit before the trial Court against the defendants-respondents for cancellation of sale deed said to have been executed on 9th January, 1981.  The aforesaid suit was contested by the defendants.  The trial Court vide order dated 16th February, 2000 dismissed the suit filed by the petitioner-plaintiff holding that on the basis of grounds mentioned in the suit, the registered sale deed is not liable to be rejected and thus dismissed the suit.

Aggrieved by the order dated 16th February, 2000, passed by the trial Court, the petitioner-plaintiff filed an appeal before the lower appellate Court, which was numbered as Civil Appeal No. 12 of 2000.  During the pendency of the appeal, the petitioner-plaintiff filed an application 22 Ga under Order 41, Rule 27 of the Code of Civil Procedure after five years of the filing of appeal with the prayer that in exercise of jurisdiction under Order 41, Rule 27 of the Code of Civil Procedure the Court should permit the petitioner-plaintiff (appellant in the appeal) for adducing the evidence, at the appellate stage.  The additional evidence that was sought to be adduced was that the sale deed said to have been executed by the father of the petitioner and his thumb impression was also there.  It is admitted fact that the father of the petitioner had executed a sale deed wherein the admitted thumb impression of the the father of petitioner was there and the petitioner wants to bring this document as evidence at the appellate stage after the trial Court has rejected the plea raised by the petitioner-plaintiff that the disputed sale deed was executed  by setting up a fictitious person.  The lower appellate Court rejected this application on the ground firstly that the suit remain pending for twenty one years and the appeal remain pending for five years before the filing of the application 22 Ga and there is absolutely no explanation, except that it was not within the knowledge of the petitioner-plaintiff, which is being filed before the lower appellate Court only after the opinion received from learned counsel who is arguing the appeal that the same thumb impression of the father of the petitioner-plaintiff was there, may help in deciding the appeal.  The lower appellate Court has considered the explanation submitted by the petitioner and has not agreed that this case is a fit case for exercise of discretion at the appellate stage, particularly in view of the fact that the suit remain pending for twenty one years and the appeal being pending for five years.

Learned counsel for the petitioner-plaintiff has not been able to demonstrate that the discretion exercised for not permitting the petitioner-plaintiff to adduce the evidence at the appellate stage suffers from the error of law, much less manifest error of law, so as to warrant any interference by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.

In view of what has been stated above, this writ petition has no force and is accordingly dismissed.  However, there will be no order as to costs.

Dated: 26.09.2005.



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