Chaitram Patel S/o Late Ugrasen Patel Aged About 55 Years R/o Village Beltikri v. 1. Deenanath Patel S/o Late Ugrasen Patel Aged About 58 Years R/o Village Beltikri
Case Details
1 2025:CGHC:24196 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WP227 No. 508 of 2025 Chaitram Patel S/o Late Ugrasen Patel Aged About 55 Years R/o Village Beltikri, Police Station And Tahsil Sarangarh, District Sarangarh- Bilaigarh (C.G.) ... Petitioner(s) versus 1. Deenanath Patel S/o Late Ugrasen Patel Aged About 58 Years R/o Village Beltikri, Police Station And Tahsil Sarangarh, District Sarangarh- Bilaigarh (C.G.) 2. State Of Chhattisgarh Through The Collector, Sarangarh, District Sarangarh-Bilaigarh (C.G.) 3. Manoj Kumar Kediya S/o Late Ganpat Kediya Aged About 43 Years R/o Bilaspur Road, Pratapganj, Sarangarh, Tahsil Sarangarh, District Sarangarh-Bilaigarh (C.G.) ... Respondent(s) For Petitioner
Legal Reasoning
: Mr. Shikhar Sharma, Advocate For State : Mr. Pramod Ramteke, P.L. Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board 16-06-2025 1) By way of this petition, the petitioner has challenged the order passed by the learned Additional Judge to the District Judge, Sarangarh, 2 District – Sarangarh-Bilaigarh (C.G.), in Civil Appeal No. 29/ 2023 dated 08.04.2025, whereby the learned appellate Court has rejected the application filed by the petitioner/ plaintiff under Order 41 Rule 27 of CPC. 2) Learned counsel for the petitioner/plaintiff submits that a suit was filed by the plaintiff for declaration of title, permanent injunction and to declare the orders passed by the Tehsildar and SDO (R) null and void. He further submits that the Civil Suit was partly allowed by the learned Trial Court vide judgment and decree dated 28.03.2023. The petitioner preferred a regular appeal (Civil Appeal No. 29/2023) before the learned appellate Court against the aforesaid judgment and decree along with an application under Order 41 Rule 27 of CPC. He contends that the petitioner wanted to demonstrate his right over the suit property by filing certain documents but the learned appellate Court vide its order dated 08.04.2025 rejected the application for taking additional evidence on record, whereas the regular appeal remains pending. He further contends that the law in this regard is no more res-integra and the Hon’ble Supreme Court in the matter of Union of India v. Ibrahim Uddin and another1 has held that the Appellate Courts should decide the application for taking additional evidence on record at the stage of final hearing of the appeal. 3) On the other hand, learned State counsel would oppose. He submits that there is no infirmity in the order impugned. 4) Heard learned counsel for the parties and perused the documents placed on the record. 5) Perusal of the order impugned indicates that the learned appellate 1 . (2012) 8 SCC 148 3 Court has decided the application moved under Order 41 Rule 27 of CPC separately whereas the appeal is still pending consideration. 6) Order 41 Rule 27 of CPC reads as under:- “Order 41, Rule 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) [***] [(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 may allow such evidence or document to be produced, or witness to be examined. (2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission. ” 7) A careful reading of sub-rule (aa) of the aforesaid Order 41 Rule 27 of the CPC would show that the object of the rule is to provide an opportunity to the party who was not able to produce the evidence in the trial Court and thereby to provide an opportunity to produce the same in the appellate Court. In order to produce the documents, the conditions mentioned in sub-rule (aa) of Order 41 Rule 27 of the CPC must be satisfied to exist. 8) In the matter of State of Rajasthan v. T.N. Sahani and others, 2 their 2 . (2001) 10 SCC 619 4 Lordships of the Supreme Court have held that Order 41 Rule 27 of the CPC has to be considered at the time of hearing of the appeal on merits and as such the application should be decided along with appeal and held as under:- "This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into to the documents which are sought to be filed as additional evidence. need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27 (b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner, it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be appropriate. Further, the reason given for the dismissal of the application untenable. The order under challenge cannot, therefore, be sustained . It accordingly, set aside. The application restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh, in accordance with law. ” 9) Similarly, in the matter of Eastern Equipment & Sales Limited v. ING. Yash Kumar Khanna 3 , their Lordships of the Supreme Court clearly held that the application filed under Order 41 Rule 27 of the CPC has 3 . (2008) 12 SCC 739 5 to be decided along with the appeal. 10) Also, in the matter of lbrahim Uddin (supra), their Lordships of the Supreme Court have considered the stage in which the application filed under Order 41 Rule 27 of CPC has to be considered and held as under:- “ 49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merit so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore, is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect become apparent to the court. 52. Thus, from the above, it is crystal clear an application for taking additional evidence on record at an appellate stage, even if filed during the pendency,of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence as required to be taken on record in order to pronounce the judgment or for any other substantial cause. In 6 case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record, to pronounce the .judgment or not. remains inconsequential/in-executable and is liable to be ignored. ” 11) Taking into consideration the facts of the present case; the provisions of Order 41 Rule 27 of CPC and applying the principles of law enunciated in the matters of T.N. Sahani (supra), ING Yash Kumar Khanna (supra) and Ibrahim Uddin (supra), this Court has no hesitation to conclude that the learned appellate Court committed an error of law while deciding the application filed under Order 41 Rule 27 of CPC separately, therefore, the order under challenge dated 08.04.2025 is hereby set-aside. 12) Accordingly, the instant writ petition stands allowed. The appellate Court is directed to decide the application moved under Order 41 Rule 27 of CPC at the time of the final hearing of the pending appeal. 13) As Civil Appeal No. 29/2023 has remained pending since 12.05.2023, the learned appellate Court is directed to make all endeavours to decide the pending appeal expeditiously. Sd/- (Rakesh Mohan Pandey) JUDGE Ajinkya Digitally signed by AJINKYA PANSARE Date: 2025.06.17 11:14:05 +0530