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Calcutta High Court · body

2013 DIGILAW 618 (CAL)

MODERN PACKGING CORPORATION v. WEST BENGAL FINANCIAL CORPORATION

2013-08-26

SUBHRO KAMAL MUKHERJEE

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JUDGMENT The Judgment of the Court was as follows : By the order impugned, the learned Judge in the lower appellate Court rejected an application for reception of additional evidence. 2. The learned Judge in the lower appellate Court opined that there was no whisper in the four corners of the petition that the appellant could not produce those documents, sought to be relied upon as additional evidence, in spite of due diligence. 3. What is the learned Judge in the lower appellate Court missed is that the true test is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be produce. The appropriate time to pass orders, if any, under Order 41, Rule 27 of the Code of Civil Procedure is the time for final hearing of the appeal when the appellate Court is in a position to scrutinise and appreciate the evidence on record. Delay or negligence is no bar when the Court itself requires the evidence for satisfactory decision. 4. Therefore, the learned Judge in the lower appellate Court ought to have considered the said application at the time of final hearing of the appeal. 5. The order impugned is, thus, set aside. 6. The application filed under Order XLI, Rule 27 of the Code of Civil Procedure is restored to its original file. 7. I direct the learned Additional District Judge, Third Court, Paschim Midnapore, to consider the said application for production of additional evidence along with the appeal uninfluenced by his observations made in the order impugned. 8. I direct the learned Judge in the lower appellate Court to dispose of the appeal as expeditiously as possible preferably within three months from the date of communication of this order to the Court below. 9. The office is directed to communicate this order to the lower appellate Court, immediately. 10. The revisional application is, thus, allowed. 11. I make no order as to costs. Revision is allowed.