IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. FAO (Ord.) 131 of 2009. Date of decision September 9, 2009. Daulat Ram ….Appellant/Defendant. Versus Shri Chhavi Ram and others..Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the appellants Mr. Lovnesh Kanwar, Advocate. For the respondenta Mr. Ajay Chandel, Advocate. Dev Darshan Sud, J. (Oral). This appeal has been preferred by the defendants against the order passed by the learned Presiding Officer, Fast Track Court, Mandi in an appeal preferred by the plaintiff dismissing his suit in which he had prayed for the relief of annulling the will executed in favour of the defendant and permanent prohibitory injunction against the respondent- plaintiffs. 1 Whether Reporters of Local Papers are allowed to see the judgment? No. - 2 - An application under Order 41 Rule 27 of the Code of Civil Procedure (hereinafter referred to as the Code) was also filed by the plaintiffs before the learned appellate Court which was allowed and additional evidence as prayed for was allowed to be adduced on the record but to be recorded by the learned trial Court. The learned Court also ruled that the onus of proof of issues 3 and 6 as settled had also been wrongly placed on the plaintiff whereas it should have been on the defendants. The judgment and decree of the trial Court dismissing the suit of the plaintiff was set aside and the case was remanded to the trial Court for decision afresh after recording additional evidence and re-recording evidence on the two issues, the onus of which according to the appellate Court had been wrongly placed on the plaintiff. I have heard the learned counsel for the parties and have gone through the judgment on record. So far as the question of onus is concerned, the plaintiffs and the defendants have gone to trial with their eyes wide open and led - 3 - evidence on the respective merits of their claims. No recourse has been taken to the provisions of Section 14 of the Code for recasting issues. The parties having accepted the issues as they were framed and the onus as assigned to each, they cannot now turn around and say that the onus was wrongly placed on the plaintiff, more especially when they have brought their respective evidence and each witness has been examined / cross examined. A retrial of the entire suit at this stage cannot be ordered merely on a simple grievance that the onus of issues has not been rightly placed. This part of the judgment of the learned Fast Track Court cannot be sustained and is accordingly set aside. On the other aspect, that is the allowing of the application under Order 41 Rule 27 of the Code, I find that the learned appellate Court has rightly allowed this application in the totality of the facts and circumstances of the case. This provision was interpreted by this Court in Badi Ram v. M/S R.S.Company, AIR 2002 HP 150, following the decision of the Constitution Bench of the Supreme Court in K.Venkataramiah v. - 4 - A. Seetharama Reddy, AIR 1963 SC 1526. On going through the judgment, I find that the evidence including the documents which were required to be proved are absolutely necessary and essential for the just decision of the case and the appellate Court has not committed any error in allowing this application. The learned appellate Court should not have resorted to a wholesale remand but should have either recorded the evidence itself or directed it to be recorded by the trial Court if it thought fit so to do. The judgment of the learned trial Court to that extent cannot be sustained. This appeal is accordingly disposed of with the following directions: (i) The learned Presiding Officer, Fast Track Court, Mandi shall re-admit the appeal on its record; (ii) He shall record the additional evidence himself. (iii) For this purpose, both the parties shall be given adequate opportunity of leading additional evidence in - 5 - support of their respective contentions. The learned appellate Court shall thereafter proceed to decide the appeal in accordance with law. Parties shall appear before the learned Appellate Court on 30.10.2009. The appeal is accordingly disposed of. There shall be no order as to costs. Pending application(s) shall stand disposed of. September 9, 2009 (PC). (Dev Darshan Sud), J.