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2016 DIGILAW 1669 (ALL)

Ram Karan v. Jagdeep Singh

2016-05-02

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. – Heard Sri Mohan Srivastava for the petitioner and Sri Ashish Kumar Singh for the respondents. 2. Sri Ashish Kumar Singh, counsel for the respondents does not propose to file any counter affidavit. With the consent of the parties the petition is being decided on merit at this stage. 3. This petition has been filed for setting aside the a part of the order of District Judge dated 8.4.2016 by which application under Order41, Rule 27 CPC has been rejected. 4. A short argument has been raised by the counsel for the petitioner that appeal was listed for consideration of stay application. On that date the application under Order 41, Rule 27 CPC has also been taken into consideration. The court below found that the circumstances, as mentioned in the application under Order 41, Rule 27 CPC has not been satisfied. 5. The counsel for the petitioner specifically relies upon Order 41, Rule 27 (1) (b) CPC and submits that Order 41, Rule 27 CPC assigned discretion to the Appellate Court to require any document to be produced or any witness to be examined to enable it to pronounce judgment. Or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. For exercise of discretion under Order 41, Rule 27 (1) (b) CPC an application is required to be considered along with hearing of appeal on merit. At that stage the court can form an opinion that document can be admitted for any other substantial cause or documents are necessary to enable the court to pronounce the judgment. In this case application under Order 41, Rule 27 CPC has been decided without hearing the appeal on merit. Therefore, there was no occasion to the court to apply its discretion as provided under Order 47, Rule27 (1) (b) CPC. 6. I have considered the arguments of the counsel for the parties and examined the records. 7. Normal practise of this Court is also to hear the application under Order 41, Rule 27 CPC along with hearing of the appeal as the additional evidence in the appellate stage can be admitted on several grounds. 8. 6. I have considered the arguments of the counsel for the parties and examined the records. 7. Normal practise of this Court is also to hear the application under Order 41, Rule 27 CPC along with hearing of the appeal as the additional evidence in the appellate stage can be admitted on several grounds. 8. So far as grounds given under Order 41, Rule 27 (1) (b) CPC is concerned, it is only at the time of hearing of appeal on merit, the court can form an opinion as to whether the documents may be necessary to enable the court to pronounce the judgment or the documents can be admitted for any other substantial cause. 9. In view of the above, the petition succeeds and is allowed. The order of the appellate court dated 8.4.2016, so far as it relates to rejection of application under Order 41, Rule 27 CPC is set aside. The appellate court is directed to consider the application Order 41, Rule27 CPC at the time of hearing of appeal on merit and if it is found that the documents can be admitted for any other substantial cause then he may admit it and give an opportunity of rebuttal to the respondents and hear the appeal again on merit. 10. It has been informed by the parties that appeal is being listed for hearing. The court below shall proceeds to hear it without granting any unnecessary adjournment to either of the parties.