JUDGMENT P.K. Palli, J. (Oral): The plaintiffs having lost in both the Courts; below, arc in second appeal. Plaintiff claimed a declaration as well as injunction that the defendants be restrained from raising any construction so that the light and air, which the plaintiffs have been getting from the Southern side of their houses, is not stopped or decreased in any manner whatsoever. The right was claimed under the law of easement. 2. The trial Court dismissed the suit. The first appeal was also dismissed. When the matter was in Regular Second Appeal before this Court, i.e. R.S.A. 318 of 1990, it came to the notice of this Court that the first appellate "Court While deciding the appeal has not decided an application filed by the plain ills seeking additional evidence, under Order 41 Rule 27 of the Code the civil Procedure. 3. The appeal was, consequently, allowed arid the case was sent back I for decisions afresh after deciding the application for additional evidence. 4. It is in this situation that the appeal was re-heard and decided viding impugned judgment. The application for additional evidence has been separately decided vide order dated December 24,1994 and has been rejected. : 5. Mr. Gupta learned Counsel for the plaintiffs appellants before proceeding to argue the appeal on merits, has pointed out that the order rejecting the application for additional evidence is not sound in law and the Court appears to have been influenced wrongly by an order dated January 16,1989 passed by the then first appellate Court, which order was in respect of allowing of the amendment to ti ; plaint It has also been brought to my notice that during the hearing of the appeal issue No.3-B as it stood earlier during trial of the case, was re-caste vide order dated May. 5, 1989. The issue as it stood earlier and the one re-cast are reproduced hereunder.- "3.-B. Whether: the plan submitted by the defendant No.3 to defendant No.5 has been sanctioned in violation of the Municipal bye-laws and in-collusion. If so, its effect? O.P.P. 3-B. Whether the plan submitted by the defendant No.3 to defendant No.5 has been sanctioned in violation of Municipal Bye-laws and ruled and regulation under the H.P. Town and Country Planning Act and in collusion. If so, its effect? O.P.P." 6. While allowing the. If so, its effect? O.P.P. 3-B. Whether the plan submitted by the defendant No.3 to defendant No.5 has been sanctioned in violation of Municipal Bye-laws and ruled and regulation under the H.P. Town and Country Planning Act and in collusion. If so, its effect? O.P.P." 6. While allowing the. amendment on January 16,1989, the Court in its order made an observation that as the amendment is of legal nature, no fresh evidence is necessary to be led. 7. Mr. Gupta is at pains to contend that it was not the domain of the first appellate court to have made such an observation, as it was the right of the plaintiffs to lead any evidence on the issue, which was re-cast on the amended pleadings, the onus of which was admittedly on the plaintiffs. 8. As I look at the matter if at all any evidence is to be led it would be only on the re-cast issue and not on the earlier. It was the option of the plaintiffs to have made a statement that they do not want to lead any additional evidence on the issue so re- cast and in that situation the Court should proceeded further with the matter 9. A perusal of the record further reveals that an application was made by the plaintiffs on March 29, 1989 immediately after the amendment was allowed, seeking permission of the Court for leading additional evidence. This application was rejected vide order dated May 5.1989. Available at page 38 of the record of the first appellate court. 10. Issue was re-cast on May 5, 1989 and immediately after that another application came to be filed by the plaintiffs on June, 27, 1989, which was actually presented before the Court on July 6; 1989. In this application, prayer was made again for permitting the plaintiffs to lead additional evidence. 11. Incidentally it is this application which vent un-noticed at the lime of the final hearing of the appeal, which ultimately resulted in remand by this Court. In the application, the plaintiffs have prayed that in order to prove the allegations of violation of the rules and regulations in the sanction of the plan, plaintiffs desire to place on record sale agreement dated April 10, 1972 and further to prove that the open terrace in front of the property exclusively belongs to the plaintiffs. In the application, the plaintiffs have prayed that in order to prove the allegations of violation of the rules and regulations in the sanction of the plan, plaintiffs desire to place on record sale agreement dated April 10, 1972 and further to prove that the open terrace in front of the property exclusively belongs to the plaintiffs. As I read, language of issue No.3-B as re-cast, itenjoins on the plaintiffs to prove whether the plan submitted by defendant No.3 and sanctioned by defendant No.5, was sanctioned illegally or in violation of the laws and rules mentioned therein. - 12. Mr Gupta contends that in order to prove this additional evidence the plaintiffs shall have to call witnesses and such other experts who can throw light on the controversy arising out of the re-cast issue. This application has been disposed of as noticed above vide a separate order of the same date on which the judgment in the main appeal was pronounced, i.e., December 24, 1994. 13. A look at the order reveals that the learned Court was in one way or the other swayed on account of large number of applications filed by the parties during the trial as well as during the hearing of the appeal. The learned Court further appears to have been influenced with the observations made by the predecessor Court that no fresh evidence is required to be led on the additional issue which was re-cast at the stage of appeal. It was solely on this ground that the application stands rejected. 14. It has already been made clear above that it was the option of the plaintiffs to lead or not to lead evidence on the re-cast issue. But when the issue has, admittedly, been re-cast placing burden of proof on the plaintiffs, it was none of the function of the Court to observe that no evidence is necessary or is required to be led. 15. It is for this reason where the first appellate Court appears to have committed a mistake in rejecting the application for additional evidence. I do not find in the order any other reason for declining the prayer made by the plaintiffs. The order further does not show as to what additional evidence was required and how the same was not relevant or does not satisfy the ingredients of Order 41 Rule 27 of the Code of Civil Procedure. 16. I do not find in the order any other reason for declining the prayer made by the plaintiffs. The order further does not show as to what additional evidence was required and how the same was not relevant or does not satisfy the ingredients of Order 41 Rule 27 of the Code of Civil Procedure. 16. For the reasons given above, the plaintiffs-arc permitted to lead such evidence as is sought to be led on the re-cast issue. It is however, made clear that not more than two opportunities shall be granted to the plaintiffs to conclude their evidence on this issue and in case the evidence is not concluded, the evidence of the plaintiffs shall be deemed to be closed by an order of the Court. 17. Likewise two opportunities shall be afforded to the defendants to produce their evidence in rebuttal on the issue and if they failed to conclude their evidence in two opportunities, their evidence shall also be deemed to be close by an order of the Court 18. At this stage, Mr. Ajay Kumar has brought to my notice that there is vet another, application dated October 12, 1993 on the record of the first appellate Court and another application which has been filed here along with appeal. In those applications also, a prayer has been made for leading additional evidence. In view of the fact that the plaintiffs have been granted opportunity to lead evidence and the application dated July 6, 1989 failed by them stands allowed, both these applications are not pressed and would be deemed to have withdrawn. 19. Resultantly, the judgment and decree" passed by the first appellate Court are set aside and the appeal is allowed. The matter is remanded back to the first appellate Court and the learned Court is directed to re-appraise the entire evidence including the additional evidence which is to be led and then dispose of the appeal on merits afresh. Parties through their learned Counsel are directed to appear before the first appellate Court on December 10,1997. It is further directed that theppeal be disposed of finally within one year from today. The order is directed to obey punctually. Cost to follow the event. Appeal allowed