JUDGMENT S.N. Srivastava, J.
1. Petition in hand has its genesis in the impugned order dated 10.10.2003, passed in Civil Appeal No. 276 whereby Application No. 269C under Order XLI, Rule 27, C.P.C. and application No. 296C for amendment in the written statement have been rejected by the lower appellate court.
2. It would appear from the record that Suit No. 912 of 1990 was instituted by respondent No. 2 for the relief of permanent injunction. The aforestated suit culminated in being decreed and this led to filing of appeal before the lower appellate court. During pendency of appeal, the petitioners preferred application Nos. 269C under Order XLI, Rule 27, C.P.C. and 296C for amendment in the written statement. The aforestated applications came to be rejected by means of impugned order dated 10.10.2003 and it is in the above backdrop that the present petition has been instituted for the relief of writ of certiorari quashing the impugned order.
3. I have heard learned counsel for the parties at length and have also traversed upon the impugned order for its intrinsic merit.
4. The learned counsel for the petitioners who was arrayed as respondents in the suit canvassed that the amendment sought to be incorporated in the written statement was imperative inasmuch as they were seeking to introduce alternative plea of ownership in relation to land in question which is permissible in law. It was further submitted that application for additional evidence was apt to be allowed inasmuch as the ingredients as embodied in Order XLI, Rule 27 of the C.P.C. bulked large and consequently impugned order were liable to be set aside. Per contra, the learned counsel for the opposite-parties tried to buttress the impugned order stating that the amendment sought to be introduced runs counter to the original pleading inasmuch as in the original pleading the property in question was claimed to be property of Nagar Mahapalika, Agra, while by means of amendment, they were trying to introduce a new pleading claiming their title over the property in question which is in contrariety of the original pleading as taken in the plaint. The learned counsel further contended that the application for additional evidence was rightly rejected as there was justifiable ground to make out a case warranting admissibility of additional evidence at appellate stage.
5. In connection with the question involved here in this petition, I feel called to acquaint myself with the relevant provisions of the Code of Civil Procedure. Section 107(d) of the Civil Procedure Code empowers the appellate court to take additional evidence or require such evidence to be taken subject to such condition and limitation as may be prescribed. Order XLI, Rule 27 of the C.P.C. prescribes the conditions and limitations in the matter, Rule 27 of Order XLI, C.P.C. may be excerpted below :
"27. Production of additional evidence in appellate court.-(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or,
(b) 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, the appellate court may allow such evidence or document to be produced, or witness to be examined.
(2) Where additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission."
It brooks no dispute from a perusal of Rule first that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate court. It then proceeds to lay down the classes of cases where the appellate court may allow additional evidence to be produced. One such class is where the Court appealed from has refused to admit evidence which ought to have been admitted. The other class is additional evidence for itself either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that when an additional evidence is allowed to be produced the Court shall record the reason for Its admission. It would further crystallise that additional evidence in appeal may be admitted on either of the grounds namely, (a) improper refusal of evidence by trial court, (b) the appellate court requiring the document or evidence for proper adjudication or for ends of justice which includes any other substantial cause and for the party's not getting hold of the evidence despite due diligence. It would further appear that for application of Clause (aa), diligence on the part of the party applying for introduction of additional evidence must be established, i.e., he had no knowledge of such additional evidence and that such evidence did not come to his knowledge despite diligence. The lower appellate court has clearly found that the amendment sought to be made had the complexion of additional evidence but at the same time, it has been held that the amendments sought to be introduced run counter to the original pleading, i.e., it is a veiled attempt to make out a case different from one pleaded in the plaint. It is borne out from the record that in the original pleading the written statement were specific to the effect that the land in suit was the property of Nagar Mahapalika and the pleading sought to be introduced now at the appellate stage to the effect that the defendants are the owners of the property in suit is a veiled attempt to make out a different case from the one originally pleaded in the written statement.
6. Now coming to the intrinsic merit of the amendments sought, it would be useful to quote below the amendments sought by the defendants in the written statement at the appellate stage.
"15A. That though the decree passed in Suit No. 817 of 1979 is not binding upon the defendants yet a perusal thereof shows that the plaintiff was held not to be the owner of the property in suit but was only held to be in wrongful possession thereof. Therefore, the allegation of the plaintiff that he is the owner of the property in suit is absolutely incorrect. He has no right, title or interest in the property in suit and his possession, if any, is that of a trespasser.
15B. That on the other hand, the defendants are the owners of the property in suit. The plaintiff in no case even on the basis of his alleged possession cannot seek any decree for injunction against the true owner of the property in suit."
7. In my considered view, the pleading of paragraph 15A sought to be introduced in the written statement raises a pure question of law and is therefore, innocuous as it would not be in antagonism of the original pleading with any effect detrimental to the interest of the plaintiff nor would it have the effect of improving upon the case as originally pleaded or taken in the trial court. It can best be termed as legal plea inasmuch as it does not warrant adducing of fresh evidence. As a matter of fact, this plea is based on material available on record. In so far as second pleading contained in paragraph 15B sought to be introduced is concerned, I am of the view that it has been rightly held by the appellate court that the pleading as contained in paragraph 15B would be in contrariety of the original pleading and it would be fraught with consequences upsetting the original pleading at the trial stage. It is settled position in law that there is no inherent power in appellate court to receive additional evidence and circumstances in which appellate court can receive additional evidence have been prescribed. The amendment sought to be incorporated by introducing paragraph 15B has the complexion of introducing a new case, which is not permissible at appellate stage. Therefore, it leaves no manner of doubt that the appellate court has rightly rejected the application in so far as pleadings as contained in paragraph 15B are concerned. The learned counsel for the petitioners also cited decision in B.K. Narayan Pillai v. Parameshwaran Pillai and Anr., (2000) 1 SCC 712, to prop up the falling case. I have gone through the decision and am of the view that the said decision is unavailing and has no application to the present case. As a matter of fact it was a case in which defendant had pleaded himself as licensee. Subsequently by amendment he introduced alternative pleading of lessee in written statement.
8. As a result of foregoing discussion, the writ petition succeeds and is allowed in part. The impugned order dated 10.10.2003 in so far as rejection of application No. 269C under Order XLI, Rule 27, C.P.C. and paragraph 15B to be incorporated in the written statement, is held to be sustainable but in so far as amendment in the written statement by introducing paragraph 15A is concerned, the impugned order is held to be not sustainable and is ordered to be quashed and in consequence, to that extent application No. 296C shall stand allowed.