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2019 DIGILAW 2623 (RAJ)

Ghisa Lal v. Tapadia Bagichi Trust

2019-09-30

ASHOK KUMAR GAUR

body2019
JUDGMENT Ashok Kumar Gaur, J - The instant writ petition has been filed by the petitioners challenging the orders dated 11th April, 2018 and 16th September, 2019. The Appellate Court, vide order dated 11th April, 2018, had passed order on the application filed under Section 41 Rule 27 CPC. The Court below had observed that the application for taking evidence on record will be considered at the time of final hearing of the appeal. 2. Learned counsel for the petitioner submitted that an application under Section 151 CPC dated 31st August, 2019 was filed by the petitioner to pass appropriate order on an application, which was already filed by the petitioner under Order 41 Rule 27 CPC. 3. Learned counsel submitted that the application, which was already allowed by the Court below on 11th April, 2018, was first required to be considered before final decision of the appeal. 4. Learned counsel submitted that the Court below has committed illegality in rejecting the application of the petitioner filed under Section 151 CPC. 5. Learned counsel submitted that though the High Court had given direction to dispose of the appeal within the period of four months but the said period would expire on 7th November, 2019 and as such, without being influenced by the said order of the High Court, the Court below ought to have decided the application of the petitioner filed under Section 151 CPC. 6. Learned counsel also places reliance on the judgment in the case of Union of India Vs. Ibrahim Uddin & Anr, (2012) 8 SCC 148 . 7. On the strength of said judgment, learned counsel submitted that the Apex Court has laid down the law that the additional evidence is required to be taken on record in order to pronounce the judgment or for any other substantial cause at the time of final hearing of the appeal. 8. Learned counsel has referred para 52 of the judgment in the case of Union of India Vs. Ibrahim Uddin & Anr. 8. Learned counsel has referred para 52 of the judgment in the case of Union of India Vs. Ibrahim Uddin & Anr. (supra), which is quoted hereunder for ready reference : "52.Thus, from the above, it is crystal clear that 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 final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, 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. 9. I have considered the submissions made by learned counsel for the petitioners and perused the record. 10. This Court finds that the Court below has already considered the application of the petitioner filed under Order 41 Rule 27 CPC vide order dated 11th April, 2018 and the Court below clearly observed that the application of the petitioner will be considered while deciding the appeal. 11. This Court finds that apprehension of the petitioner is unfounded that the application will not be considered and decided by the Court below while deciding the appeal itself. Once, the Court below has already permitted the said application on 11th April, 2018, in normal course while deciding the appeal, will also consider the application, which has been filed by the petitioner under Order 41 Rule 27 CPC. The law laid down by the Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin & Anr. (supra) also clearly stipulates that if application for taking additional evidence on record at an appellate stage is filed during the pendency of appeal, the same is to be heard at the time of final hearing of appeal at a stage when after appreciating the evidence on record, the Court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. 12. 12. This Court, without interfering in the orders passed by the Court below, only observes and disposes of the present writ petition that the Court below will proceed according to the order dated 11th April, 2018 and will also keep in mind the law laid down by the Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin & Anr. (supra).