Law:

Section:

This second appeal by a vendee-defendant against the trial Court's decree for possession of land through pre-emption passed on 30-11-1985 in favour of the respondent and upheld in appeal below on 18-2-1989; is sought to be supported on two main grounds; namely, first, that his application for additional evidence being allowed to be adduced at the appellate stage has not been given adequate consideration in being rejected in the course of writing appellate judgment and, the second, that since there was a recital contained in the document of sale made on 20-4-1977 that possession had been delivered to him, therefore, suit brought on 17-5-1978 was barred by time.

2.  Neither of the foregoing contentions has any substance because, as regards the first in Rule 27 of Order XLI of the C.P.C. entitlement of a party to an appeal to produce additional evidence stands clearly negated and there having not been made any wrongful refusal by the Trial Court to admit such an evidence, the request could be allowed by the appellate Court, in its discretion and for the reasons to be recorded, only if it may have required such evidence for being able to pronounce judgment and this occasion could arise only when the material available on the record had, first been gone into by the appellate Court. Thus, it is only preposterous to urge that the vendee's request for additional evidence deserved being considered before attending to the appeal itself. Moreover, even in a case coming under clause (a) of the Rule; discretion of the appellate Court, of course to be exercised judicially and not arbitrarily, has to be determinative of the request and no right of any party can possibly get involved in it. Order on tile point has been passed by learned District Judge judiciously, on the basis of admission contained in the written-statement, the plea for revocation whereof has also been properly refused by him inasmuch as vendee could not be allowed to benefit from his own complicity in the so-called misrepresentation about the sale-