Ram Kumar vs Ramkala

The present writ petition is directed against the order dated 08.10.2019, passed by the Civil Judge, Nohar, District Hanumangarh (hereinafter referred

to as the ‘trial Court’), whereby the application dated 17.10.2019 filed by the petitioner for taking the affidavit filed by the respondents off the

record has been rejected.

The facts appertain are that in an appeal filed by the petitioner — Ram Kumar the Appellate Court set aside the judgment and decree dated

19.09.2012, passed by the trial Court and remanded the matter back to the trial Court vide order dated 21.08.2019. A direction was also issued to consider the documents, which the petitioner had filed before the Appellate Court along with an application under Order XLI Rule 27 of the Code of

the Civil Procedure.

In furtherance of the order dated 21.08.2019, when the matter came up for consideration before the trial Court, the respondent — Ramkala filed an additional affidavit in the trial Court.

The present petitioner moved the subject application under Section 151 of the Code and prayed that the affidavit filed by the respondent cannot be taken on record, as there is neither any provision in the Code of the Civil Procedure nor any stipulation in the order of the Appellate Court permitting the parties to lead additional evidence.

The trial Court rejected petitioner’s application vide its order impugned.

It was argued by learned counsel for the petitioner that the Appellate Court has not kept it open for the respondent to file affidavit or to lead additional

evidence, the order of remand was rather confined to decision of the matter on the basis of material available, of course considering the documents filed before the Appellate Court. He added that it was not open for the trial Court to permit the respondent to file an additional affidavit.

Heard.

At a first flush, what has been argued by the learned counsel for the petitioner appears to be attractive, however, on a closer scrutiny it is clear that the respondent was required to be given liberty to lead evidence, at least with respect to the documents which have been taken on record by the trial

Court, pursuant to direction of the Appellate Court, on her application filed under Order XLI Rule 27 of the Code.

A perusal of the order impugned passed by the trial Court reveals that the trial Court has precisely done the same thing.

Though, technically the trial Court has kept/taken the affidavit filed by the respondent on record, however, it has been clarified that the affidavit shall be read only to the extent of her assertion about the additional documents filed at appellate stage.

The order impugned does not suffer from any infirmity, error of law or of jurisdiction warranting interference, in light of restrictions on interference

carved out by Hon’ble the Supreme Court in Shalini Shyam Shetty & Ors. Vs. Rajendra Shankar Patil, reported in 2010 (8) SCC 32 9and Surya

Dev Rai Vs. Ram Chander Rai & Ors., reported in 2003 (6) SCC 675.

The writ petition, therefore, fails.

The stay application is also dismissed.