Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 199 (ALL)

Ram Singh Kushwaha v. Madhubala

2015-01-30

ASHWANI KUMAR MISHRA

body2015
JUDGMENT Ashwani Kumar Mishra, J. It appears that in a suit for injunction filed by the plaintiffs respondents, an application for grant of temporary injunction was also moved, whereupon an order of injunction was passed on 10th August, 2011. Aggrieved against it, the defendants have filed a misc. appeal under Order 43 Rule 1 of CPC. In the pending appeal, the defendant petitioner has moved an application under Section 151 CPC bringing on record certain documents, which has been rejected by the court below on 13th September, 2012. Thus aggrieved, the defendant has filed the present writ petition. 2. Perusal of the record goes to show that the lower appellate court has rejected the application primarily on the ground that the application filed by the defendant fails to meet the requirement of Order 41 Rule 27 CPC, and consequently, the application itself cannot be entertained. 3. Learned counsel for the petitioner submits that the provisions of Order 41 Rule 27 CPC will not be attracted in the facts of the present case, as no decree as yet has been passed, and the suit is yet to be adjudicated by the trial court, and therefore, the order rejecting the application is bad in law. 4. Learned counsel appearing for the respondents, on the other hand, submits that the application filed by the defendant for bringing on record documents in appeal was not supported with any affidavit or any justification, and therefore, even otherwise, the application was not liable to have been allowed. Sri Bharat Pratap Singh, learned counsel for the respondents fairly submits that the proposition of law, on the basis of which the court below has rejected the application is in teeth of the law settled by this Court in the case of Rajendra Kumar Bajpai Vs. Shailesh Kumar Shukla and another [2013(6)ADJ 363 : 2013 (2) ARC 633 ]. Paras 5, 6 & 7 of the said judgment are reproduced: - "5. In view of the aforesaid facts and circumstances, I am of the opinion that the provisions of Order 41 Rule 27 C.P.C. permitting additional evidence cannot be applied to misc. appeals from an interlocutory order passed on the interim injunction application. 6. His Lordships of this in Kailash Nath Singh Vs. The District Judge, Mirzapur and another AIR 1993 Alld. 67 held that the appellate court while hearing an appeal arising out of misc. appeals from an interlocutory order passed on the interim injunction application. 6. His Lordships of this in Kailash Nath Singh Vs. The District Judge, Mirzapur and another AIR 1993 Alld. 67 held that the appellate court while hearing an appeal arising out of misc. proceedings is not supposed to entertain an application for the amendment of the plaint and the only course open is to direct moving of the amendment application before the trial court or for its consideration by the trial court on disposal of the appeal on merits. 7. It is only on a regular appeal filed that the appellate court exercises the jurisdiction of the trial court and is competent to take evidence which is not the position when the appellate court is hearing a misc. appeal." 5. Having considered the respective submissions advanced, this Court finds that the ground for rejection of the application that it fails to meet the requirement of Order 47 Rule 27 CPC has no application in view of Rajendra Kumar Bajpai's case (supra). The order impugned, therefore, cannot be sustained, and is, therefore, liable to be set aside. 6. Though the defendant petitioner has not disclosed reasons for bringing on record the documents, but as the proceedings arise out of grant of injunction, and the trial is yet to take place, it would be appropriate to permit the documents to be taken on record, so that the appeal itself would be decided finally. 7. In such circumstances, the writ petition succeeds, and is allowed. The order impugned dated 13.9.2012 is set aside. A direction is issued to the appellate court to take on record the documents, for which application has been filed by the defendant petitioner. 8. Since the appeal itself has remained pending since the year 2011, it would be appropriate to direct the court concerned to expedite the proceedings of appeal and conclude the same, in accordance with law, at the earliest possible, without granting any unnecessary adjournment to either of the parties, by fixing short dates.