Dr. Bharat Bhushan Parsoon, J.
During the pendency of the appeal, pursuant to an application under Order XLI Rule 27 CPC, appellant-plaintiffs, respondents herein, have been allowed to lead additional evidence in the nature of production of certified copy of plaint of an earlier litigation reference qua which is contained in recitals of agreement to sell in question.
2. The petitioners, who are respondent-defendants in the appeal, have challenged the said order in this revision petition, claiming that the agreement to sell is a false and fabricated document as Fazludeen had never executed the same and that the land was ancestral property of the defendants and of the reversioners. It is claimed that the first appellate court wrongly allowed the application under Order XLI Rule 27 CPC as the plaintiffs were in possession of the said document and could have produced the same during the proceedings of the lower court when opportunity was available with them to produce such evidence. It is also claimed that allowing of production of additional evidence in the appeal amounts to filling up lacuna by the respondent-appellants.
3. Stand of the applicant-appellants, respondents herein, per contra is that the document allowed to be produced in additional evidence is in the nature of certified copy of the plaint of another case, which document is beyond manipulation and thus could not have been created by the respondent-applicants-appellants. It is also urged that the said document is necessary for effective, complete and competent adjudication of the matter in controversy and thus had rightly been allowed by the court below.
4. Counsel for the parties have been heard while going through the paper book.
5. Earlier suit between the present litigants, i.e, civil suit No. 264 of 7.6.1988 titled Kalu v. Fazludeen was pending between the parties, wherein reference to agreement to sell (Ex.P1), which document forms the foundation of the present litigation, had allegedly been made. During the proceedings of the present litigation before the first Appellate Court, copy of plaint of earlier suit No. 264 of 7.6.1988 was sought to be produced as an additional evidence.
6. The only evidence sought to be produced additionally is certified copy of plaint of an earlier litigation between the parties which had been filed on 7.6.1988 It was civil suit No. 264 of 7.6.1988 titled “Kalu v. Fazludeen”. Claim of the petitioner-defendants is that since copy of plaint sought to be produced additionally in evidence was well within the knowledge of the respondent-plaintiff, it could not have been allowed to be produced by the court below. No doubt, the evidence sought to be adduced additionally is of yester years and was well within the knowledge of the parties including the respondent-plaintiffs, but we need to understand the background in which the application for adducing additional evidence was preferred as also the attending facts and circumstances in which such application has been allowed by the court below.
7. Deciding the present litigation between the parties, the lower court had made a pointed observation that record qua the litigation referred to in the agreement to sell had not been produced. Agreement to sell (Ex.P1) itself was thus, under attack. It is a conceded fact that there is recital in agreement to sell (Ex.P1) about the earlier litigation viz. “Kalu v. Fazludeen”, some record regarding which was required to be produced to lend credence to the version of the plaintiff as also to establish validity and legality of the agreement Ex.P1 The court below noticing all these facts had come to a firm finding that the evidence sought to be produced additionally by the plaintiffs i.e the respondents herein, was necessary for just and proper decision of the case. Thus, in the interface of pointed observations made by the court, plea of the petitioner-defendants that the additional evidence at the belated stage was not permissible, takes the back seat.
8. Observations of the court below to this effect are as under:
“Since the production of the certified copy of the plaint by way of additional evidence is necessary for the just and proper decision of the case, then seeing the observations made by Hon'ble Apex Court in Shyam Gopal Bindal case (supra) and by our own Hon'ble High Court in Ashok Kumar's case (supra), the observations made in K. Bhaskar Rao's, Harmandeep Singh's, Mohanpuri's, Balinder Kaur's and Mohar Singh's cases (supra) cannot be followed particularly when the applicant-appellant has been able to prove that he could not produce this document when he was leading his evidence because there was no serious dispute about the fact of pendency of litigation between Kalu v. Fazlu vide civil suit No. 264 of 7.6.1988”
9. The learned lower court has also placed reliance on Shyam Gopal Bindal v. Land Acquisition Officer 2010 (1) CCC 707 (SC) wherein following observations of the court below are noteworthy:
“The Hon'ble Apex Court also in Shyam Gopal Bindal case (supra) has held that when the documents sought to be produced formed the very basis of the claim and their consideration was necessary for just decision of the case, then the additional evidence should be allowed.”
10. Citing Pyare Lal v. Mehar Singh (2011-2) PLR 82 (P&H), it is claimed that certified copy of plaint is a public document and no further proof is necessary for proving the said document. It was also held therein that the court is bound to receive such document at the instance of the party producing the same.
11. Taking all these aspects into consideration, the application was allowed clearly noticing that it was not going to prejudice the cause of the LRs of the contesting respondents who are now the petitioners in this Court as they would be having right to lead evidence to rebut the additional evidence so produced.
12. Keeping in view the totality of aforesaid facts and circumstances, when the court below itself has clearly mentioned that the evidence to be brought additionally is necessary for just and proper adjudication of the case, there is no reason to deprive the court of such evidence required by it for complete and effective adjudication of the matter in controversy.
13. Sequelly, affirming the impugned order dated 25.1.2012 (Annexure P-2) passed by the court below, this petition, being without any merit, is dismissed.
14. The parties shall appear before the lower court on 29.9.2014
15. However, it is made clear that the petitioner-defendants would be having a right to lead evidence in rebuttal of such evidence.