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2001 DIGILAW 66 (HP)

MAN SINGH v. AMAR DAS

2001-04-30

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—Appellant Man Singh, having lost before the trial Court and the first Appellate Court, is in second appeal under Section 100 of the Code of Civil Procedure. 2. The facts necessary for the disposal of this appeal may be noticed: 3. Subject matter of dispute is the land described fully in para 3 of the plaint, hereinafter, referred to as "disputed land". Hari Singh, Bhuria and Narainu were owners of this land to the extent of 1/ 3rd share each. Plaintiff Room Ram is son of Hari Singh whereas Man Singh is son of Liaq Ram defendant No. 2 and grand-son of Bhuria. On the death of Narainu on 4.1.1952 his share was mutated in favour of Suini as his widow. Dis-satisfied with this mutation, plaintiff Room Ram along with defendant No.l Deep Ram, (another son of Bhuria, who was deleted from the array of defendants on his death) and Liaq Ram father of defendant Man Singh filed a suit before the leaned Senior Sub Judge, Mahasu, on 24.3.1952 in terms of suit No. 18/1 of 1952. This suit was for declaration, that mutation No. 97 mutating the share of Narainu in favour of Suini was null and void and for the cancellation of that mutation. This suit was decreed exparte on 10.1.1953 by the then Senior Sub Judge, Mahasu. The mutation was declared to be cancelled. It was the case of the plaintiff and defendants that Suini was not the widow of deceased Narainu as she was released (divorced) by her husband Narainu. As a result of cancellation of the mutation of inheritance of l/3rd share of Narainu in favour of Suini, plaintiff and defendants No. 1 and 2 became the owners of the disputed land to the extent of 1/2 share each i.e. plaintiff 1/2 share, defendants Liaq Ram and Deep Ram 1/2 share (in equal shares). 4. Man Singh defendant, who is none else but son of Liaq Ram, moved an application for the partition of the disputed land before the Asstt. Collector 1st Grade on February 4, 1982 almost 30 years of the judgment of Senior Sub Judge. He claimed title to the 1/ 3rd share of Narainu, on the basis of the Will alleged to have been executed in his favour by Smt. Seuni. Collector 1st Grade on February 4, 1982 almost 30 years of the judgment of Senior Sub Judge. He claimed title to the 1/ 3rd share of Narainu, on the basis of the Will alleged to have been executed in his favour by Smt. Seuni. His case was that mutation of inheritance of the share of Narainu was attested in favour of Seuni being his widow which entry was not changed and continued in the revenue record. The plaintiff resisted the application and raised a question of title. Notwithstanding the objections of the plaintiff about the title of Man Singh on the disputed land, the application for partition was allowed by the Assistant Collector 1st Grade Kasauli on June 24, 1982 settling the mode of partition. Plaintiff aggrieved filed an appeal before the Collector, Solan Sub Division, which was dismissed on 3.1.1983. Revision before the Financial Commissioner also proved to be unsuccessful. 5. In this background, plaintiff then filed a suit, out of which the present appeal arises, for declaration to the effect that he and defendants No. 1 and 2 are joint owners of the disputed land except the land comprised in Khasra No. 570/548/545/503 measuring 23-2-5 bighas of which plaintiff claimed to be exclusive owner. The revenue entries to the contrary in favour of Suini were wrong and that she had no authority to execute any Will in respect of the disputed land in favour of Man Singh defendant No. 3 and, therefore, the orders of the revenue authorities for partition of the disputed land are null and void and not binding on the rights of the plaintiff. An injunction was also sought against the defendants restraining them from seeking partition of the land in dispute on the basis of wrong revenue entries and from alienating any part of the land or from cutting/removing any tree there from till the land in dispute is partitioned in accordance with law. Case of the plaintiff so far land comprised in Khasra No. 570/548/545/503 is concerned was that his father was tenant of this land and the plaintiff became its sole owner after coming into force of H.P. Tenancy and Land Reforms Act. Case of the plaintiff so far land comprised in Khasra No. 570/548/545/503 is concerned was that his father was tenant of this land and the plaintiff became its sole owner after coming into force of H.P. Tenancy and Land Reforms Act. So fair the Will set up by Man Singh was concerned, plaintiff disputes title of Suini on the suit land and further pleaded that the alleged Will has been obtained by fraud, coercion and undue influence and that Smt. Suini never executed any Will nor she was competent to execute such Will. 6. Defendant Liaq Ram father of Man Singh did not contest the suit and was proceeded ex parts. Suit was resisted only by Man Singh defendant on the grounds that Suini, after attestation of mutation of the share of Narainu, became owner of the land to the extent of l/3rd share and she during her life time had executed a valid will in his favour and, therefore, partition proceedings initiated by him were within the four corners of law. 7. On the pleadings of the parties, following issues were settled: 1. Whether Revenue entries showing defendant No. 3 co-owner with the plaintiff and defendants No. 1 and 2 are wrong, illegal not binding on the plaintiff? OPP 2. Whether Smt. Suini had no share in the suit land? OPP 3. Whether Smt. Suini executed a valid Will in favour of the defendant No. 3, if so to what effect qua the suit land? OPD 4. Whether plaintiff is absolute owner in possession of the land of khasra No. 570/548/545/503 and revenue entries, about this land are wrong, illegal, void as alleged? OPP 5. Whether the orders about partition of the suit land, by Revenue officials are wrong, illegal, void as alleged? OPP 6. Whether the suit is barred by principles of res judicata? OPD 7. Relief. 8. Learned trial Judge found that revenue record showing defendant Man Singh as co-owner with the plaintiff and defendants Liaq Ram and Deep Ram were illegal and Suini never executed any valid will in favour of Man Singh. Learned trial Judge also concluded that mode of partition settled by the revenue authorities was wrong, suit of the plaintiff was decreed. 9. Learned trial Judge found that revenue record showing defendant Man Singh as co-owner with the plaintiff and defendants Liaq Ram and Deep Ram were illegal and Suini never executed any valid will in favour of Man Singh. Learned trial Judge also concluded that mode of partition settled by the revenue authorities was wrong, suit of the plaintiff was decreed. 9. Defendant Man Singh dis-satisfied with the judgment and decree of the trial Court filed an appeal before the learned District Judge, Similarly, plaintiff Roop Ram dis-satisfied with the findings of learned trial Court on issues No. 2 and 4 also filed an appeal. Both these appeals were decided by a common judgment and decree dated 2.12.1991 impugned herein. 10. Learned District Judge allowed the appeal of the plaintiff holding that Seuni was not widow of deceased Narainu and, therefore, she had no share in the disputed land. Appeal of defendant Man Singh was dismissed. Plaintiff withdrew his claim that he is exclusive owner of the land comprised in Khasra No. 570/548/545/503. 11. Still aggrieved defendant Man Singh filed this second appeal. The appeal was admitted on 13.4.1992 on the following substantial questions of law: 1. Whether the learned Senior Sub Judge, Mahasu did not determine the status of Smt Narainu being widow of Sh. Narainu while passing decree in Civil Suit No. 18/1 dated 10.1.1953? 2. Whether ex-parte decree dated 10.1.1953 as passed for cancellation of mutation No. 97 regarding inheritance of late Sh. Narainu does not operate as res-judicata as it was a suit for mere cancellation of mutation? 3. What is the effect of failure to execute exparte decree dated 10.1.1953 passed by the learned Senior Sub Judge, Mahasu? 4. Whether the learned District Judge failed to exercise jurisdiction by ignoring the entires in the revenue record according to which Smt. Suini is recorded owner in possession of l/3rd share? 5. Whether the will as set up by the appellant having been executed by Smt. Suini is a legal and genuine document and the courts below has committed error by considering it shrounded with suspicious circumstances? 12. I have heard Mr. G.D. Verma, Senior Advocate instructed by Romesh Verma, Advocate for the appellant and Mr. Dinesh Sharma learned Counsel for the respondents and gone through the record with their help. Question No. 1. 13. 12. I have heard Mr. G.D. Verma, Senior Advocate instructed by Romesh Verma, Advocate for the appellant and Mr. Dinesh Sharma learned Counsel for the respondents and gone through the record with their help. Question No. 1. 13. The contention of learned Senior Counsel for the appellant is that status of Suini was not determined in the ex parte judgment. Suini was widow of Narainu and ex parte decree obtained by plaintiff and defendant Liaq Ram does not take away rights of Suini who had become the owner of the disputed land to the extent of l/3rd share. This ex parte decree (Ex. PW-l/B), according to Sh. Verma, does not operate as res-judicata and is not in the way of the defendant so far his claim of l/3rd share of the disputed land on the basis of the Will of Suini is concerned. 14. It is not in dispute that Suini was married to Narainu. According to plaintiff, Narainu during his life time released (divorced) Suini who then started living with one Billu as his wife. It is also not in dispute that 1/3 share of Narainu was mutated in favour of Suini as his widow vide mutation Ex. PW-l/F which was attested on 4.1.1952. There is also no dispute that plaintiff along with defendants 1 and 2 filed a suit against Suini challenging the mutation of 1/3rd share of Narainu in her favour on the grounds that Suini was not widow of Narainu. Suini appeared in the trial court but later abstained and was proceeded against ex parte. On the basis of ex parte evidence, the Senior Sub Judge Mahasu cancelled the mutation of inheritance of l/3rd share of Narainu in favour of Suini. Copies of judgment and decree are placed on record as Ex. PW-l/B and Ex. PW-l/C. The relevant portion of the judgment reads as under: "The defendant did not appear inspite of service so ex parte proceedings has been taken against her. The plaintiff has examined himself as P.W. and produced Ex. PA a pedigree table from which it is clear that plaintiff is the collateral of Narainu deceased, the last male owner of the property in dispute. The plaintiff has examined himself as P.W. and produced Ex. PA a pedigree table from which it is clear that plaintiff is the collateral of Narainu deceased, the last male owner of the property in dispute. He has further deposed that Must Suini was no doubt once wife of Narainu but he had been released by him and there after she began to live as a wife of one Billu and so she was not the heir of the deceased and that mutation Ex. PB had been wrongly attested in her favour. So the plaintiff has thus proved his case and I pass an ex parte declaratory decree with costs in favour of plaintiff against the defendant with the declaration that mutation No. 97 of 27.12.1951 shall be cancelled to the extent of 1/3 of land involved mutating the said land in favour of Must Soni" (Emphasis supplied) 15. It may be seen, the question in the previously instituted suit between the parties was whether Smt Suini was entitled to inherit l/3rd share of Narainu in the joint property being his widow. This question was answered in negative by the then Senior Sub Judge, Mahasu vide his judgment dated 10.1.1953 in Civil Suit No. 18/1. The mutation of inheritance sanctioned in favour of Suini in respect of l/3rd share of Narainu, was ordered to be cancelled. In these circumstances, it is not material whether status of Smt. Suini as widow of Narainu was determined or not. In any event. Learned District Judge answering the question by impugned judgment held : "the question whether Smt. Suini was the widow and legal heir of the deceased Narainu was, thus directly in issue in the said case and the learned Senior Sub Judge, Mahasu came to the conclusion that the plaintiffs in the said case had been able to prove their case. Consequently, the mutation in favour of Smt. Suini was cancelled. Therefore, this fact stands proved that Smt. Suini was not the widow of deceased Narainu” 16. Finding of learned District Judge is purely a finding of fact and it is not open to this Court, in jurisdiction under Section 100 of the Code of Civil Procedure, to go into this question. The question raised is not question of law least substantial question of law. Question No. 2. 17. Mr. Finding of learned District Judge is purely a finding of fact and it is not open to this Court, in jurisdiction under Section 100 of the Code of Civil Procedure, to go into this question. The question raised is not question of law least substantial question of law. Question No. 2. 17. Mr. Verma, learned Senior Counsel for the appellant contended that the ex parte decree dated 10.1.1953 cancelling the mutation of inheritance of Narainu in favour of Siuni, does not operate as resjudicata as that was a suit for mere cancellation of mutation. 18. The contention is misplaced. The definite case of the plaintiffs in civil suit No. 18/1 decided by the learned Senior Sub Judge, Mahasu on 10.1.1953, was that though Suuni was once wife of Narainu but she was divorced by Narainu and, therefore, was not entitled to succeed to the share of Narainu in the joint property. Apparent as it is, the cancellation of mutation was sought for the reason that Sunni was not wife of Narainu and, therefore, not entitled to succeed to his share. It is in this background that mutation of inheritance in favour of Sunni was cancelled by this judgment. It is the finding and not the reasoning of a Court which forms resjudicata. The finding in that case was that mutation of inheritance was wrongly attested by the concerned revenue officer. An half hearted attempt was made by the learned Counsel for the appellant that an ex-parte judgment does not operate as res judicata. In my view, there is no difference in a judgment obtained ex parte after recording some evidence of the plaintiff and one obtained after due contest by the parties. In an ex parte decree, all grounds of a.ttack in respect of the actual claim made and all matters inconsistent with the plaintiffs claim which might and should have been raised by the defendants will be deemed to be directly and substantially in issue in a previously instituted suit. The provisions of Section 11 are mandatory in nature. Litigant who claims under one of the parties to a former suit cannot avoid the provisions of Section 11 of the Code, except under Section 44 of the Evidence Act, as Section 11 does not bar a suit for setting aside an ex-parte decree on the ground that it was obtained by fraud. Litigant who claims under one of the parties to a former suit cannot avoid the provisions of Section 11 of the Code, except under Section 44 of the Evidence Act, as Section 11 does not bar a suit for setting aside an ex-parte decree on the ground that it was obtained by fraud. The principle of res judicata seeks to achieve a public purpose to give finality in litigation. 19. The Supreme Court in Satyadhyan Ghosal and others, appellants v. Smt. Deorajin Debi and another, respondents, AIR 1960 Supreme Court 941 (V. 47 C 167) observed : (7) The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter—whether on a question of fact or a question of law—has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in Section 11 of the Code of Civil Procedure; but even where Section 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher Court must in any future litigation proceed on the basis that the previous decision was correct." 20. Learned Counsel for the appellant then submitted that decision of learned Senior Sub Judge in former suit that Seuni was not entitled to inherit the share of Narainu in the properties was wrong as mere release of a wife would not amount to divorce. Under the general principles of res judicata, a wrong decision of a Court, having jurisdiction, is binding between the parties to that suit with all its rigors as a right one. Under the general principles of res judicata, a wrong decision of a Court, having jurisdiction, is binding between the parties to that suit with all its rigors as a right one. The Supreme Court in State of West Bengal, Appellant v. Hemant Kumar Bhattacharjee and others, Respondents, AIR 1966 Supreme Court 1061, held : “......A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review and which the law provides". 21. In the present case, Suini was a party to the former suit and the appellant Man Singh, who claims the share in the disputed land through Smt, Suini is bound by the judgment of learned Senior Sub Judge in Civil Suit No. 18/1 dated 10.1.1953. It is not open to him to re-agitate the question whether Smt. Suini was entitled to succeed to the share of Narainu. The question is accordingly answered. Question No. 3. 22. The next contention of Shri Verma is that the ex-parte decree of declaration dated 10.1.1953 in the previous suit, was not executed and therefore, such a decree is null and void and is of no consequence and cannot operate as res judicata. In the former suit No. 18/1, only deeclaratory decree was passed by the Court that mutation No. 97 of 27.12.1951 sanctioning the mutation of inheritance of the share of Narainu in favour of Suini shall be cancelled. I hardly need to emphasise that the declaratory decree merely declares the right of the decree holder vis-a-vis the judgment debtor and, therefore, there is nothing for the decree holder to execute. The Supreme Court in State ofMadhya Pradesh, appellant v. Mangilal Sharma, Respondent, AIR 1998 Supreme Court 743, approved a Full Bench decision of Punjab and Haryana High Court in Prakash Chand v. S.S. Grewal, 1975 Cri.L.J. 679, where it was held that a declaratory decree cannot be executed. In paras 8 and 9 of the judgment, Their Lordships observed thus : } 8. In Prakash Chand v. S.S. Grewal, 1975 Cri.L.J. 679, (Full Bench) (Punjab and Haryana High Court), the petitioner had a decree in his favour declaring his dismissal from service to be illegal, void and of no effect. The Punjab Government did not reinstate him nor paid him the arrears of salary. In Prakash Chand v. S.S. Grewal, 1975 Cri.L.J. 679, (Full Bench) (Punjab and Haryana High Court), the petitioner had a decree in his favour declaring his dismissal from service to be illegal, void and of no effect. The Punjab Government did not reinstate him nor paid him the arrears of salary. He, therefore, filed a writ petition for taking contempt of Courts proceedings against certain officials of the State Government. The Court held as under (at p. 684 of Cn. L.J.): "A declaratory decree, in my opinion cannot be executed as it only declares the rights of the decree holder qua the judgment-debtor and does not in terms, direct the judgment-debtor to do or to refrain from doing any particular act or thing. Since there is no command issued to the judgment-debtor to obey, the civil process cannot be issued for the compliance of that mandate or command. The decree-holder is free to seek his legal remedies by way of suit or otherwise on the basis of the declaration given in his favour." 9. In our view, it is a correct statement of law except that it may not be fully applicable in the case of a Government servant who acquires a status and his service conditions are governed by statutory rules as noticed above.” 23. In my view, the question of res judicata does not depend on executability of the decree. Even if the decree is not executable, the point decided will still be res judicata and suit can always be filed for a relief flowing from such decree or decision. The question is accordingly answered. Question No. 4. 24. The contention of learned Counsel for the appellant is that the learned District Judge ignored the entries in the revenue record showing Smt. Suini to be owner in possession to the extent of 1/ 3rd share and these entries conclusively show the title of Smt. Suini on the l/3rd share of the suit land. I am afraid, there is no merit in this contention. Smt. Suini was recorded as an owner in possession of 1/3rd share of the disputed land pursuant to the sanction of mutation of inheritance of the share of Narainu in her favour in terms of mutation No. 97 of 27.12.1951. Now this very mutation was cancelled by the judgment of learned Senior Sub Judge Mahasu in Civil Suit No. 18/1 dated 10.1.1953. Now this very mutation was cancelled by the judgment of learned Senior Sub Judge Mahasu in Civil Suit No. 18/1 dated 10.1.1953. Once the basis of the entry is shown to be illegal, then continuation of such entry will not confer any title on the person in whose favour such entry was made. The question is accordingly answered. Question No. 5. 25. There is concurrent finding of both the Courts below that Will as set up by appellant Man Singh alleged to have been executed by Smt. Suini in respect of l/3rd share in the disputed land, is not a valid Will. I need not go into the question of the validity of the Will as Suini, having no interest or title in disputed land, was not competent to execute any Will in respect of l/3rd share of the disputed land. The question is accordingly answered. 26. This apart, in this appeal, no question of law arises. As held in Ishwar Dass Jain (Dead) through LRs. v. Solan Lal (Dead) by L.Rs., (2000) 1 Supreme Court Cases 434, there are only two situations in which High Court, in jurisdiction under Section 100 of the Code of Civil Procedure, can interfere with the findings of fact: (i) When material or relevant evidence is riot considered which if considered would have led to an opposite conclusions; (ii) Where a finding has been recorded by the First Appellate Court placing reliance on inadmissible evidence which if omitted, an opposite conclusion was possible. 27. In the present case, the entire evidence has been considered by the First Appellate Court, it can also not be said that the Courts below have placed reliance on inadmissible evidence which if omitted, would upset the conclusion arrived at by the Courts below, 28. Explaining the scope of Section 100 of the Code, Apex Court in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar and others, (1999) 3 Supreme Court Cases 722, observed in para 5: "5. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate Court. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when ii is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate Court, is binding on the High Court in second appeal Adopting any other approach is not permissible. The court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence" (Emphasis supplied) 29. In my view, the conclusion arrived at by the learned First Appellate Court cannot be said to be contrary to provisions of law applicable in this case or to the law settled by the Apex Court. CMP No. 232 of 1998. 30. The appellant, it may be noticed, filed an application under Order 41 Rule 27 of the Code of Civil Procedure for additional evidence in terms of CMP No. 232 of 1998. This application was filed on April 30, 1998 almost six years after the filing of this appeal. According to the appellant/applicant Man Singh, plaintiff had filed a suit No. 199/1 of 1979 in the Court of learned Sub Judge, Kandaghat on 24.12.1979 on the same subject matter. The suit was withdrawn on August 22, 1985 "subject to payment of cost of Rs. 200/ The present suit, therefore, was not maintainable on the principle of res-judicata as cost of Rs. 200 imposed by the trial Court were not paid. It is the further case of the appellant/applicant that issues were not correctly framed and, therefore, he could not lead the evidence in support of his plea of res-judicata. 200/ The present suit, therefore, was not maintainable on the principle of res-judicata as cost of Rs. 200 imposed by the trial Court were not paid. It is the further case of the appellant/applicant that issues were not correctly framed and, therefore, he could not lead the evidence in support of his plea of res-judicata. The applicant sought to tender in evidence attested copies of : (a) plaint in civil suit No. 199/1 of 1979; (b) amended copy of the plaint; (c) written statement filed on behalf of the defendant; (d) written statement filed by the defendant to the amended plaint; (e) copy of the order dated 22.8.1985. 31. It is pleaded that these documents could not be placed on record inspite of due diligence. According to the applicant : "As a matter of fact, the needful could not be done in the absence of issues which were required to be framed on the point of maintainability of suit and on the point of limitation. Had the requisite issues been framed, he would have led evidence." It is also pleaded: "The present plaintiffs have not paid cost as awarded at the time of grant of permission to file fresh suit and on this account also, the present suit was not maintainable." 32. The perusal of the record shows that defendant-appellant had taken a plea that the suit is barred by the principle of resjudicata. It is pleaded: "That the suit is barred on the principle of res-judicata, since. the suit of the plaintiff has already been dismissed by the learned Sub Judge, Kandaghat vide order dated 17.5.1985 in which the similar points were agitated by the plaintiff, the photo copy of the amended plaint of the said suit is attached herewith which was supplied to the replying defendant". 33. Issue No. 6 was settled by the trial Court on this plea of the appellant in following terms : 6. Whether the suit is barred by the principles of res-judicata. 34. It appears, this issue was not pressed by the defendant-appellant before the trial Court. The findings on issue No. 6 reads: "During the course of arguments, learned Counsel for the defendant did not press for this issue and hence it is decided against the defendant as unpressed". 35. Whether the suit is barred by the principles of res-judicata. 34. It appears, this issue was not pressed by the defendant-appellant before the trial Court. The findings on issue No. 6 reads: "During the course of arguments, learned Counsel for the defendant did not press for this issue and hence it is decided against the defendant as unpressed". 35. The appellant-applicant in the first appeal before the learned District Judge, did not raise a plea that issue No. 6 was in fact agitated and pressed by him. Only a vague plea was taken that findings given by the learned Senior Sub-Judge, Solan on Issues No. 1, 3, 5 and 6 are wrong, against facts proved on the record and are liable to be set-aside. There is not a whisper in the grounds of appeal that the learned trial Court has wrongly recorded that Issue No. 6 regarding his plea of resjudicata was not pressed. Had the defendant-appellant been serious in his plea, he would have tendered the necessary evidence. Even defendant Man Singh does not say a word about the previous suit filed by the plaintiff in his evidence as DW 1. The plea of the applicant-appellant that he could not lead the evidence in the absence of issues is untenable. 36. The other plea that costs for filing fresh suit were not paid before the filing of the present suit, is also not well founded as defendant in his statement -did not say anything about it. A bare perusal of Rule 27 of Order 41 shows that the parties to an appeal must confine to the pleadings and evidence on record and should not be permitted to go beyond the record of the lower Court. Additional evidence can only be permitted to be led in an appeal if the party, seeking to lead additional evidence, establishes that with the best efforts, such additional evidence could not have been adduced at the first instance and that the additional evidence was relevant for determination of the issue. The rule is indeed an exception to the General Rule that the appellate Court cannot take any evidence in appeal. Learned Counsel then submitted that additional evidence is necessary for adjudicating the Us between the parties completely and effectively. I am afraid such is not the case. The rule is indeed an exception to the General Rule that the appellate Court cannot take any evidence in appeal. Learned Counsel then submitted that additional evidence is necessary for adjudicating the Us between the parties completely and effectively. I am afraid such is not the case. As pointed out by the Apex Court in Syed Abdul Khader, Appellant v. Rami Reddy and others, Respondents, AIR 1979 SC 553, Rule 27 of Order 41 of the Code of Civil Procedure does not give a right on a party to produce additional evidence. It is only when the Court hearing an appeal requires an} document or other additional evidence to enable it to pronounce the judgment that it has the jurisdiction to permit the additional evidence to be produced. 37. By no stretch, it can be said that the documents sought to be produced at evidence were not in the knowledge of the appellant/ applicant or they could not be produced by him inspite of exercise of due diligence before the trial Court or the first appellate Court. 38. As already pointed out, the appellant having abandoned his plea, cannot be permitted to agitate the same in the second appeal under the garb of this application. There is no statutory explanation by the applicant-appellant for his failure to produce the evidence either before the trial Court or the first Appellate Court. Apparent as it is, the appellant did not want to contest this issue and therefore did not lead any evidence and accordingly, did not press the issue at the time of arguments before the trial Court. In any event, as noticed earlier, no such evidence is required to enable this Court to pronounce the judgment. This provision cannot be permitted to be invoked to introduce fresh evidence at the stage of second appeal when this Court can pronounce the judgment without evidence sought to be introduced (See : Municipal Corporation of Greater Bombay, Appellant v. Lala Pancham and others, Respondents, AIR 1965 AC 1008). 39. I am satisfied that the present application has been filed only to delay the proceedings and has no merit. The same is dismissed. 40. No other point is urged before me. 41. In result, appeal fails and is dismissed with costs. Petition dismissed.