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2023 DIGILAW 562 (MP)

Betu Lal Lodhi v. Maharaniya Lodhi

2023-05-08

DWARKA DHISH BANSAL

body2023
ORDER 1. This miscellaneous petition has been preferred by the petitioner/ defendant 2 challenging the order dated 20.8.2018 (Annexure P/3), passed by 1st Additional District Judge, Nagod, District Satna in civil appeal No.23-A/2008, whereby learned first appellate Court has, before deciding the plaintiffs’ regular civil appeal on merits, decided and allowed the application under Order 41 rule 27 CPC filed by the respondents/plaintiffs. 2. Learned counsel for the petitioner/defendant 2 by placing reliance on the decision of Supreme Court in the case of Union of India v. Ibrahim Uddin and another (2012) 8 SCC 148 = 2012(III) MPJR (SC) 258 and of co-ordinate Bench of this Court in the case of Sampurna Singh v. Harisingh 1997(II) MPWN 147 , submits that learned first appellate Court has committed illegality in deciding the application under Order 41 rule 27 CPC before hearing and deciding the appeal on merits and prays for setting aside the impugned order. 3. Learned counsel appearing for the respondents 1-4/plaintiffs supports the impugned order and submits that no jurisdictional error has been committed by learned first appellate Court in deciding and allowing the application prior to hearing of civil appeal on merits and still the petitioner/defendant 2 has right to file documentary evidence in rebuttal. Accordingly, he prays for dismissal of the miscellaneous petition. 4. Heard learned counsel for the parties and perused the record. 5. In the case of Union of India (supra), Supreme Court has held as under :-- “ 49. An application under Order XLI rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find 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. 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 & Ors., AIR 1951 SC 193 ; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053 ). 50. xxxxxx 51. xxxxxx 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/inexecutable and is liable to be ignored. 53. In the instant case, the application under Order XLI rule 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored.” 6. Following the law laid down by this Court in the case of Khemchand v. Govt. of M.P. 1972 JLJ 482 , similar view was taken by co-ordinate Bench of this Court in the case of Sampurna Singh (supra). 7. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored.” 6. Following the law laid down by this Court in the case of Khemchand v. Govt. of M.P. 1972 JLJ 482 , similar view was taken by co-ordinate Bench of this Court in the case of Sampurna Singh (supra). 7. In view of the aforesaid settled legal position, this Court is of the considered opinion that the impugned order allowing the application u/o 41 rule 27 CPC is not sustainable and deserves to be set aside with the direction to learned first appellate Court to reconsider and decide the application under Order 41 rule 27 CPC afresh on its own merits after hearing the pending regular civil appeal on merits, without being influenced by any of the observations made by this Court today. 8. Accordingly, with the aforesaid observation miscellaneous petition is allowed. 9. Interim application(s), if any, shall stand disposed off.