Research › Search › Judgment

Himachal Pradesh High Court · body

2015 DIGILAW 1026 (HP)

Shambhu Nath v. Gurpiara Singh

2015-08-05

P.S.RANA

body2015
ORDER P.S. Rana, J. Present petition is filed under Article 227 of the Constitution of India against interim order dated 2.1.2015 upon application under Order 39 Rule 7 Code of Civil Procedure passed by learned Additional District Judge Una in CMA No. 745 of 2014 filed in Civil Appeal No. 196 of 2014. Brief facts of the case: 2. Sh. Gurpiara Singh filed Civil Suit RBT No.36/14/03 titled Gurpiara Singh vs. Shambu Nath for possession and permanent prohibitory injunction. Learned trial Court passed decree of possession of land comprised in khasra No.1463/1 specifically depicted in demarcation report Ext. P-1 and field map Ext. P-2. Learned trial Court further granted decree of prohibitory injunction restraining Sh. Shambu Nath and others from interfering over the suit land. Learned trial Court further directed the defendants namely Sh. Shambu Nath and others to handover the vacant possession of land in favour of plaintiff Gurpiara Singh. Learned trial Court further held that demarcation report Ext. P-1 and field map Ext. P-2 shall form part and parcel of the decree sheet. 3. Feeling aggrieved against judgment and decree passed by learned trial Court Shambu Nath filed civil appeal titled Shambu Nath vs. Gurpiara Singh and others. 4. During the pendency of civil appeal before learned first appellate Court Sh. Shambu Nath filed CMA No. 745 of 2014 under Order 39 Rule 7 read with Section 151 CPC for appointment of Local Commissioner to visit the spot and to report about existing factual position with regard to demolition of boundary wall comprising in khasra No. 1459. Learned first appellate Court dismissed the application holding that if the application is allowed same would tantamount to help Sh. Shambhu Nath to create additional evidence in his favour in civil appeal. 5. Court heard learned Advocates appearing on behalf of the parties and Court also perused entire record carefully. 6. General principle is that appellate Court should not travel outside record of learned trial Court. Trial Courts are governed as per provisions relating to suits in Code of Civil Procedure 1908 and appellate Courts are governed as per the provisions mentioned under Order XLI and part-VII Sections 96 to 112 Code of Civil Procedure 1908. Court is of the opinion that there are different procedures for trial Courts and appellate Courts as per Code of Civil Procedure 1908. Court is of the opinion that there are different procedures for trial Courts and appellate Courts as per Code of Civil Procedure 1908. It is held that appeals are governed under the procedure of Order XLI of Code of Civil Procedure 1908 and as per procedure mentioned in Part-VII from Section 96 to 112 of CPC. It is held that there is specific provision for adducing additional evidence before the learned appellate Courts under Order XLI Rule 27 CPC. Order XLI Rule 27 CPC is quoted:- 7. “Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court except (a) That Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted [(aa) That party seeking to produce additional evidence, establishes 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 the time when the decree appealed against was passed] (b) That appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission.” 8. As per Order XLI Rule 27 party would not be allowed to produce any additional evidence whether oral or documentary in the appellate Court except as per the provisions mentioned under Order XLI Rule 27 CPC. It is held that for recording oral as well as documentary evidence before appellate Court provisions of Order XLI Rule 27 CPC would be attracted before the appellate Court. Sh. Shambu Nath did not file any application under Order XLI Rule 27 CPC before the learned first appellate Court. On the contrary Sh. Shambu Nath filed application under Order XXXIX Rule 7 CPC before first appellate Court directly without pendency of any application under Order XXXIX CPC before first appellate Court. It is well settled law that application under Order XXXIX Rule 7 CPC is filed where main interim application is pending under Order XXXIX CPC before competent Court of law for disposal. Shambu Nath filed application under Order XXXIX Rule 7 CPC before first appellate Court directly without pendency of any application under Order XXXIX CPC before first appellate Court. It is well settled law that application under Order XXXIX Rule 7 CPC is filed where main interim application is pending under Order XXXIX CPC before competent Court of law for disposal. No interim application under any provision of XXXIX CPC was pending before learned first appellate Court in the present case. In view of the fact that Sh. Shambu Nath did not file any application under Order XLI Rule 27 before learned first appellate Court and in view of the fact that no application for interim order under Order XXXIX was pending before learned first appellate Court it is held that it is not expedient in the ends of justice to interfere in the order of learned first appellate Court. 9. In view of the above stated facts petition filed under Article 227 of the Constitution of India is dismissed. Order of learned first appellate Court passed in CMA No. 745 of 2014 dated 2.1.2015 is affirmed. However petitioner Sh. Shambu Nath will be at liberty to file application under Order XLI Rule 27 CPC 1908 as per exigency of the circumstances before learned first appellate Court for appointment of local commissioner in accordance with law. File of learned trial Court along with certify copy of order be transmitted forthwith. Parties are directed to appear before learned trial Court on date 28.08.2015. Petition filed under Article 227 of the Constitution of India is disposed of. Pending applications if any also disposed of. No order as to costs.