Chhagan Lal Soni vs Mahesh Chand

R.S. Chauhan, J.—The petitioner has challenged the order dated 17.2.2014 passed by the Additional District Judge, Bansur, District Alwar, whereby he has dismissed the application under Order 41 Rule 27 CPC filed by the petitioner for taking additional documents on record.

The learned counsel for the petitioner has relied on State of Rajasthan v. T.N. Sahani and Ors., (2001) 10 SCC 619 , and Eastern Equipment and Sales Ltd. Vs. ING. Yash Kumar Khanna, and Smt. Ramkanya Devi v. ADJ No. 5, Jaipur City & Anr., (a case decided by this Court in S.B. Civil Writ Petition No. 10648/2010 on 28.3.2014), in order to plead that the proper stage for deciding the application under Order 41 Rule 27 CPC is at the time of final hearing of the case. According to the learned counsel for the petitioner, the learned Appellate Court has to consider whether the evidence which is sought to be produced at the appellate stage is relevant to the controversy involved, and whether the said evidence could have been produced after the exercise of due diligence or not. These issues cannot be decided prior to the final hearing of the appeal. They have to be decided at the time of final hearing of the appeal.

On the other hand, the learned counsel for the respondent has contended that in the case of Girraj Prasad and Others Vs. Smt. Tara Devi and Others, , this Court had clearly held that in case the application was filed after an inordinate delay and in case the application under Order 41 Rule 27 CPC has been decided on merit, the order passed by the learned Appellate Court does not deserve to be set aside. According to the learned counsel, since the application has been decided on merit, therefore, it does not deserve to be interfered with.

Heard the learned counsel for the parties, perused the impugned order, and considered the case law cited at the Bar.

In the case of T.N. Sahani & Ors. (supra), the Hon''ble Supreme Court had held as under:-

So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, would be inappropriate.

Thus, the proper stage for court to pass an order on the application filed under Order 41 Rule 27 CPC is clearly the stage of final hearing. For, it is at this stage that the Appellate Court would have to decide whether the documents sought to be produced at the appellate stage are germane to the controversy in issue or not? Whether the documents satisfy the condition of Order 41 Rule 27 CPC or not? Without seeing the interrelationship between the documents sought to be produced, and the controversy in the case, the Appellate Court would not be justified in dismissing the application under Order 41 Rule 27 CPC. It is for this reason that in catena of cases, the Hon''ble Apex Court has held that the proper stage for deciding the application under Order 41 Rule 27 CPC is at the time of final hearing of the appeal and not prior thereto.

Since in the present case, the learned Judge has passed the impugned order prior to the stage of final hearing of the case, this Court has no other option, but to set aside the order dated 17.2.2014, and to direct the Appellate Court to consider and decide the application under Order 41 Rule 27 CPC at the time of final hearing of the appeal.

The writ petition is, hereby, allowed. The stay application also stands disposed of accordingly.