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2018 DIGILAW 1265 (ALL)

Ajay Pal Rastogi v. Poonam Rastogi

2018-05-18

VIVEK KUMAR BIRLA

body2018
JUDGMENT AND ORDER : 1. Heard learned counsel for the plaintiff-petitioner and Sri Sumit Daga, learned counsel appearing for the defendant-respondent. 2. Present petition has been filed for setting aside the order dated 21.4.2018 passed by the Additional District Judge, Court No. 5, Meerut in First Appeal No. 530 of 1992, Ajay Pal Rastogi vs. Smt. Poonam Rastogi. Further prayer has been made seeking direction to the court below to take the additional evidence filed with the application dated 5.8.2015 on record. 3. The original suit filed by the plaintiff-petitioner was dismissed on 1.5.1992. Against which Civil Appeal No. 530 of 1992 was filed. Earlier, the application was filed by the petitioner under Order 41 Rule 27 CPC for taking some additional evidence on record, which was rejected. The petitioner filed Writ C No. 38315 of 2000, Ajay Pal Rastogi vs. The XIII A.D.J. and Another, which was dismissed vide order dated 1.4.2015, which is quoted as under:- "This petition has been filed under Article 226 of the Constitution of India, challenging an order passed by appellate court, rejecting the application for taking on record additional evidence. In view of the law settled by the Apex Court vide judgment dated 26.2.2015, passed in Civil Appeal No. 2548 of 2009 connected with Special Leave Petition (C) No. 25828 of 2013 Radhey Shyam and Another vs. Chhabi Nath and Others, that judicial orders of civil court are not amenable to writ jurisdiction under Article 226 of the Constitution of India, which has been followed by this Court in Writ Petition No. 11761 of 2015 Thakur Prasad vs. Beni Prasad and Others, decided on 25.3.2015, the present petition under Article 226 of the Constitution of India is not maintainable. Learned counsel for the petitioner submits that he may be permitted to convert this petition under Article 227 of the Constitution of India. This court finds that by the order impugned, appellate court has rejected the application of the petitioner for taking on record additional evidence. Order impugned arises out of interlocutory proceedings, as and when appeal itself is finally decided and if petitioner feels aggrieved, it would be open for him to take rejection of additional evidence, as a ground, in further challenge available to him, in accordance with law. Order impugned arises out of interlocutory proceedings, as and when appeal itself is finally decided and if petitioner feels aggrieved, it would be open for him to take rejection of additional evidence, as a ground, in further challenge available to him, in accordance with law. This court finds that necessary ingredients to invoke jurisdiction under Article 227 of the Constitution of India also is not available in the facts and circumstances of the case, inasmuch as there is no failure of justice nor any jurisdictional issue is involved, and therefore, this court declines to grant liberty to invoke jurisdiction of this court under Article 227 of the Constitution of India. Even otherwise, proceedings of appeal have remained pending, pursuant to the interim order granted in the present petition, since the year 2000 and therefore, it would not be appropriate to interfere in the matter. In view of the above, the present petition fails and is dismissed. Interim order, granted earlier, stands discharged." 4. Submission of learned counsel for the petitioner is that the impugned order is wholly illegal and the court below has failed to consider the fact that the petitioner was not able to procure the documents in question during trial despite exercising due diligence and no cogent reason has been given for rejecting the application. It was further submitted that the documents are very material documents and necessary for proper disposal of the appeal, therefore, they are liable to be taken on record. It is further submitted that the petitioner is ready and willing to pay entire amount in pursuance of the agreement to sale. 5. Per contra, learned counsel for the respondent has supported the impugned orders and submits that same documents are being placed before the court with this fresh application under Order 41 Rule 27 CPC, whereas as per the order dated 1.4.2015 it had already been observed by this Court that the same can be challenged when the appeal itself is finally decided and if the petitioner feels aggrieved, it would be open for him to take rejection of additional evidence, as a ground, in further challenge available to him and it was further observed that even necessary ingredients to invoke jurisdiction under Article 227 of the Constitution of India also is not available in the facts and circumstances of the case inasmuch as no failure of justice or jurisdictional issue is involved. 6. 6. I have considered the rival ubmissions and have perused the record. 7. There is no dispute about the fact that the documents that are being sought to be placed on record were in-existence before trial and the same were admittedly not filed before the trial court and earlier the ground taken was that the plaintiff-petitioner was not advised to file the same and as such the application for placing the same was made. Now in this application it has been stated that the documents were not available to the plaintiff- petitioner during trial and therefore, they are now being sought to be placed on record. 8. The petitioner again filed an application for taking evidence documents on record under Order 41 Rule 27 CPC, which were filed with the earlier application filed under the same provisions alongwith certain document and which has been rejected upto this Court. The documents are of the year 1984 and of previous years, which were obviously in the knowledge of the plaintiff-petitioner during trial and therefore, the application was rejected. 9. In the opinion of the Court, in such factual scenario, the application has been rightly rejected in view of the provisions of Order 41 Rule 27 CPC as all those documents were inexistence during trial and were not placed during trial and no sufficient or cogent reason has been assigned for filing the same. The plaintiff-petitioner cannot be permitted to fill up the lacuna in his case by filing an application under Order 41 Rule 27 CPC. 10. Present petition is devoid of merits and is accordingly dismissed.