IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA R.S.A. No. 247 of 2006 Date of decision: 01.06. 2011. Tulsi Ram …Appellant. Versus Kartar Chand ..Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ?1 No For the appellant : Mr. S.M.Goel, Advocate For the respondent : Mr. Ajay Kumar, Advocate. Kuldip Singh , Judge ( Oral ) This appeal has been directed against judgment, decree dated 1.3.2006 passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 128-P/XIII-2005 affirming judgment, decree dated 22.8.2005 passed by learned Civil Judge (Jr.Division), Court No.2, Palampur in Civil Suit No. 137 of 2000. 2. The appellant had filed a suit for possession against the respondent regarding Shop No. 12 situated in Municipal area, opposite Sainik Rest House, Palampur. The case of the appellant is that initially the shop was allotted to one Duni Chand and thereafter on the basis of an agreement with Duni Chand, the appellant came in possession of the shop. The appellant lateron came to be entered as allottee of the shop and he has been paying the rent to the Municipal Council including all other charges. The further case of the appellant is that the 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 respondent approached him for allowing him to work in the shop as Scooter Mechanic. The appellant allowed the respondent to run the shop as licensee. The respondent agreed to vacate the shop whenever called by the appellant. It has been stated that the respondent has no right, title and interest in the shop. He was asked in January, 2000 to vacate the shop but respondent has not obliged the appellant and did not hand over the possession of the shop. In these circumstances, the suit was filed. 3. The respondent has contested the suit and took preliminary objections. He has challenged the locus-standi of the appellant to file the suit. The alleged agreement in between the appellant and Duni Chand was denied. It has been alleged that the appellant never remained in possession of the shop. The respondent asserted his possession on the shop and has submitted that he is paying the rent to the Municipal Council. The learned Civil Judge (Jr.Divn.), Court No.2, Palampur dismissed the suit on 22.8.2005. The appellant filed the appeal against judgment, decree dated 22.8.2005. In the appeal, the appellant had filed an application under Order 41 Rule 27 CPC for leading additional evidence. The appeal and the application for leading additional evidence were dismissed by the learned District Judge on 1.3.2006, hence second appeal which has been admitted on the following substantial questions of law:- “Whether the two Courts below were not justified in holding that not the present appellant-plaintiff but the respondent-defendant is the licensee under the Municipal Council, Palampur, in view of the categorical statement of PW-3 Rakesh Kumar, Clerk from Municipal Council, Palampur, that earlier Duni Chand was a licensee and 3 that at present the appellant-plaintiff is a licensee, pursuant to a resolution passed by the Municipal Council?” 4. I have heard the learned counsel for the parties and have also gone through the record. It has been submitted by the learned counsel for the appellant that the learned District Judge has erred in rejecting the application of the appellant under Order 41 Rule 27 CPC. The additional evidence sought to be adduced by the appellant is in the form of documentary evidence. The additional evidence is necessary in order to adjudicate the real controversy between the parties and additional evidence will also assist the court in determining the real controversy. The learned counsel for the appellant has prayed for allowing the amendment application. The learned counsel for the respondent has submitted that the learned District Judge has rightly dismissed the additional evidence application as well as the appeal. No substantial question of law is involved in the appeal and he has prayed for dismissal of the appeal. 5. The learned District Judge on the application for additional evidence has recorded a finding that no attempt was made by the appellant for producing the documents when the matter was pending before the trial Court. In the application, it has not been pleaded that such documents could not be brought on record at the time of trial despite exercise of due diligence. The documents were in possession of the appellant, the learned District Judge has observed that the suit could be effectively and conclusively decided on the basis of records available on the file. In the application under Order 41 Rule 27 CPC, 4 the appellant has given the details of the documents and even placed on record those documents alongwith the application. It has been stated in the application that said documents could not be placed on record despite exercise of due diligence. It has also been stated in the application that the documents are essential for adjudication of the matter in dispute. 6. The learned District Judge has not recorded a finding that the documents now sought to be adduced by way of additional evidence are not necessary to adjudicate the real controversy between the parties. However, the learned District Judge has recorded a finding that the suit could be effectively and conclusively decided on the basis of records available on the file. There is no denial of the fact that the appeal can be decided on the basis of material which is already on record but the fact that what will be the impact of additional evidence that has not at all been considered by the learned District Judge. 7. In view of the fact that the learned District Judge has not properly considered the application for additional evidence, I am not deciding the substantial question of law referred to above, but the appeal is being disposed of by allowing the application under Order 41 Rule 27 CPC filed by the appellant in the Court below. Accordingly, the appeal is allowed, the impugned judgment and decree are set-aside. The parties through their counsel are directed to appear before the learned District Judge, Kangra at Dharamshala on 24.06.2011. The learned District Judge is directed to decide the appeal afresh after allowing the appellant to lead additional evidence and after giving opportunity to the respondent to rebut the evidence so adduced by the 5 appellant. The appeal is disposed of on above terms. The record be sent back immediately. June 1, 2011. ( Kuldip Singh ), (GR) Judge.