Judgment:
Naresh Chander Jain, J.
1. This revision petition is directed against the order of the appellate court declining the application under Order 41, Rule 27 of the Code of Civil Procedure (for short the 'Code').
2. The petitioner-defendant in the application under Order 41, Rule 27 of the Code wanted to produce Jamabandis for the years 1965-66, 1970-71 and 1975-76 in order to support the plea of adverse possession. The application has been declined primarily on the ground that the evidence sought to be produced could not be said to be not within the knowledge of the petitioner and, in any case, it could not be successfully maintained that after the exercise of due diligence the evidence could not be produced.
3. Mr. Anil Khetarpal, learned counsel for the petitioner, has argued that the evidence sought to be produced cannot be fabricated by the petitioner and that the same could be allowed under Order 41 Rule 27 (1) (b) of the Code, that is, for any other substantial cause. On the other hand, the teamed counsel for the respondent has argued that the appellate court has exercised its discretion and the same could not be interfered with by this court.
4. After hearing the learned counsel for the parties and after giving my thoughtful consideration to the entire matter, I am of the considered view that the appellate court in the present case would be better advised to decide the application for production of additional evidence along with the hearing of the main appeal. Copies of the jamabandis mast have been alongwith the application. If they had already not been filed, the tame would be got filed by the appellate court and thereafter it would be seen whether their production is necessary in the light of the evidence brought on the record of the case. In my view the appellate court can before deciding the appeal always decide the application for production of additional evidence. The appellate court may choose to decide the application for additional evidence alongwith the main appeal. No hard and fast rule can be laid down about the stage when the application for additional evidence should be decided. In the present case, where the plea of the defendent is regarding adverse possession and some evidence had been led; I think that the appellate court should re-decide the application or additional evidence while hearing the main appeal. The appellate court after examining the entire evidence may come to conclusion that the documents sought to be produced by way of Jamabandis will enable the court to pronounce the judgment or the documents may be needed for any other substantial cause. The appellate court may in the light of the evidence brought and the pleas raised, may come to a different conclusion. The present is a case of the type in which, this court is of the view, that the appellate court should deal with the application for additional evidence only while hearing and deciding the main appeal.
5. With these observations, the present revision petition can be disposed of leaving the appellate court to take any decision in accordance with law on the application for production of additional evidence alongwith the main appeal.
6. The parties through their counsel are directed to appear before the appellate court on 23rd July, 1990. No costs.