Makbool And Anr vs Deenmohammad And Ors

By way of the instant writ petition filed under Article 227 of

the Constitution of India defendants-petitioners seek to challenge

the order dated 17th July, 2017 (Annexure-7) passed by the

learned Addl. District Judge No.2, Hindaun City, District Karauli in

Civil Appeal No. 24/16 (22/2011) whereby the application filed by

the defendants-petitioners under Order 41 Rule 27 CPC was

dismissed.

Heard learned counsel for the parties.

It is contended by the learned counsel for the petitioners

that the learned first appellate court has committed material

irregularity and error while deciding the application under Order

41 Rule 27 CPC separately as the same ought to have been heard

and decided along with the appeal.

Learned counsel for the plaintiffs-respondents has argued

that the defendants-petitioners have offered no explanation for

not producing the documents sought to be produced along with

the application under Order 41 Rule 27 CPC, at the trial stage.

In Union of India vs. Ibrahim Uddin & Anr . (2012) 8 SCC

148 , it was held by the Apex Court that an application under

Order 41 Rule 27 CPC is to be considered at the time of hearing of

the appeal on merits so as to find whether the documents and/or

evidence sought to be adduced have any relevance/bearing on the

issues involved.

Learned counsel for the plaintiffs-respondents has not

disputed the legal position as stated above.

In view of the above, the writ petition deserves to be

allowed.

Consequently, the writ petition is, allowed and the impugned

order dated 17th February, 2017 (Annexure-7) is set aside and the

learned first appellate court is directed to decide the application

under Order 41 Rule 27 CPC at the time of hearing/deciding the

appeal on merits.