Bikaner Road Transport Service v. Additional District Judge
2017-10-13
DINESH MEHTA
body2017
DigiLaw.ai
JUDGMENT : Dinesh Mehta, J. The facts and issue involved in all the four writ petitions are common, hence, the same are being decided by this common judgment. 2. For the sake of in convenience, the facts of S.B. Civil Writ Petition No. 14052/2016 (M/s Bikaner Road Transport Service v. The Additional District Judge No. 6 & Anr.) are being taken into consideration. 3. By way of the writ petition, petitioner has laid challenge to the order dated 27.07.2016, whereby the Additional District Judge No. 6, Jodhpur Metropolitan, Jodhpur has rejected petitioner's application under Order 41, Rule 27 (aa) of the Code of Civil Procedure. 4. The facts requiring the petitioner to approach this Court by invoking its extra ordinary supervisory jurisdiction under Article 227 of the Constitution of India are that the petitioner has preferred an appeal under Order 21, Rule 101 of the Code of Civil Procedure against rejection of the objection by the Executing Court. During the pendency of aforesaid appeal, the petitioner appellant moved an application under Order 41, Rule 27(aa) of the Code of Civil Procedure, inter alia, seeking leave to produce certain documents/evidence on record. 5. The said application moved by the petitioner has been rejected by the court below vide its order dated 27.07.2016, inter alia, observing that the same had been moved for the purpose of protracting the proceedings in the appeal. It will not be out of place to reproduce the operative portion of the order of the trial court, which reads thus :- HINDI MATTER 6. Mr. OP Mehta, learned counsel for the petitioner assailing the order impugned, at the outset contended that the order passed by the Trial Court is liable to be quashed and set aside, solely for the reason that the application under consideration filed by the petitioner under Order 41, Rule 27 (aa) of the Code of Civil Procedure could not have been decided by the Appellate Court, before deciding the appeal itself and the same was required to be decided at the time of final hearing of the appeal. 7. In support of such contention, Mr. OP Mehta, learned counsel for the petitioner relied upon para 49 of the judgment rendered by Hon'ble Supreme Court, reported in (2012) 8 SCC 148 Union of India v. Ibrahim Uddin and Anr., which is being reproduced hereunder :- "49.
7. In support of such contention, Mr. OP Mehta, learned counsel for the petitioner relied upon para 49 of the judgment rendered by Hon'ble Supreme Court, reported in (2012) 8 SCC 148 Union of India v. Ibrahim Uddin and Anr., which is being reproduced hereunder :- "49. An application under Order 41, Rule 27 CPC is to be considered at the time of hearing of appeal on merits 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 evidence 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 becomes apparent to the court. (Vide Arjan Singh v. Kartar Singh and Natha Singh v. Financial Commr., Taxation.) 8. On the other hand, Mr. Jitendra Chopra, learned counsel for the respondents vehemently opposed the arguments advanced by Mr. Mehta, learned counsel for the petitioner and contended that the judgment of Supreme Court referred by counsel for the petitioner is distinguishable on the facts of the present case. He submitted that the facts of the present matter are that a decree had been passed way back on 02.06.1973 and the respondent landlord is still waiting for its fruit, on account of conduct of the petitioner, who has been filing one application after another. 9. Mr. Chopra, supporting the order impugned submitted that the order passed by the trial court is perfectly just and proper and in harmony with the factual and legal matrix involved in the present case. 10.
9. Mr. Chopra, supporting the order impugned submitted that the order passed by the trial court is perfectly just and proper and in harmony with the factual and legal matrix involved in the present case. 10. Without going into the merit or demerit of the order, this Court is inclined to accept the first argument advanced by learned counsel for the petitioner that the application under Order 41, Rule 27 of the Code of Civil Procedure ought not to have been decided by the Trial Court, before deciding the appeal. 11. In view of the above, on this ground alone, the order impugned dated 27.07.2016 deserves to be quashed and set aside and the same is, thus, set aside. 12. Mr. Mehta, learned counsel for the petitioner, at this juncture assures this Court that he/his client would corporate and help the Appellate Court in deciding the appeal expeditiously. 13. The Appellate Court is directed to decide the application afresh, however at the time of deciding the appeal. 14. Needless to observe that the trial court shall not be influenced by any observation made by this Court in the order instant and by the order dated 27.07.2016, while taking a fresh decision and would decide it independently, on the facts and law obtaining in the present case. 15. As a result, all the above writ petitions are allowed and corresponding order dated 27.07.2016 in each case stands quashed.