TaxTMI 
TaxTMI 
2008 (4) TMI 544
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....r review of order dated 17th July, 2002 has been dismissed vide latter order dated 14th June, 2005. 3. In order to appreciate the issue, requiring determination, a few material facts may be stated : The respondent herein instituted a suit for perpetual prohibitory injunction against the appellant herein, restraining them from interfering in his possession and cultivation of crop on plot bearing Nos. 129 and 131 situated in Village Bhajanpura, Tehsil and District Champawat. The suit was contested by the appellant on the ground that after acquisition, the suit land had been transferred to them by the Government. 4. Vide order dated 13th March, 2001, the Trial Court decreed the suit, inter alia, holding that the respondent is a Bhumidar and in possession of the suit land and the transfer of possession by the U.P. Government to the appellant was not proved. Against the said decree, the appellant filed appeal before the District Judge, which was dismissed vide order dated 13th November, 2001. 5. Being aggrieved, the appellant preferred second appeal before the High Court. Alleging that the respondent had obtained the decree by concealing material facts, it was averred....
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....6p had been paid to Kanhai as compensation. However, the High Court without even referring to the report of the Collector, which, in fact, had been submitted pursuant to the direction issued by it, dismissed the second appeal, on the aforestated ground. 7. Aggrieved, the appellant moved an application seeking review of order dated 17th July, 2002, on the ground that some material facts had escaped the attention of the Court while passing the order dated 17th July, 2002. 8. During the pendency of the review application, two more applications were filed by the appellant on 24th March, 2003 and 28th June, 2004 seeking permission to urge additional grounds in support of the amendment application as well as the review application. As noted above, the review application was also dismissed. 9. Mr. V. Shekhar, learned senior counsel appearing on behalf of the appellant has vehemently contended that apart from the fact that the High Court has failed to even take note of the application filed by the appellant under order 41 Rule 27 C.P.C., it has committed grave error in rejecting the amendment application on the ground of its maintainability at the stage of the second appe....
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.... evidence, established that notwithstanding the exercise of due diligence, such evidence was not within the knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, [clause (aa), inserted by Act 104 of 1976], or (iii) the 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. [clause (b) of sub-rule (1)]. 13. It is plain that under clause (b) of sub-rule (1) of Rule 27 order 41 C.P.C., with which we are concerned in the instant case, evidence may be admitted by an appellate authority if it 'requires' to enable it to pronounce judgment 'or for any other substantial cause'. The scope of the Rule in particular of clause (b) was examined way back in 1931 by the Privy Council in Parsotim Thakur v. Lal Mohar Thakur - AIR 1931 PC 143. While observing that the provisions of Section 107 as elucidated by order 41 Rule 27 are clearly not intended to allow litigant, who has been unsuccessful in the lower court, to patch up the weak parts of his case and fill up omissions in the court of appeal, it ....
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....laced in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. (Also see Gajanan Jaikishan Joshi v. Prabhakar Mohanlal Kalwar - (1990) 1 SCC 166.). 16. These are the broad principles to be kept in view while dealing with applications under order 41 Rule 27 and order 6 Rule 17 C.P.C. 17. It is manifest that in the present case, the High Court did not examine the record of the case with the thoroughness which was expected at the time of disposal of the pending applications. On a perusal of the impugned decisions, it is clear that the High Court was not even aware of the pendency of the application under order 41 Rule 27 C.P.C. seeking leave to adduce additional evidence. A perusal of the documents, which came to light pursuant to the directions given by the High Court on 3rd April 2002, prima facie, goes to show that these are likely to widely affect the decision of the Court in one way or the other. If the stand of the appellant, which, according to them, is borne out from the documents now on record, is found to be correct, then obviously these will have material bearing on ....