OM PRAKASH MITTAL vs BIJLI CHOUDHARY

Aggrieved of order dated 17.08.2017 passed in Civil Appeal No. 25 of 2015 by which an application under Order XLI Rule 27 C.P.C read with

Section 151 C.P.C has been rejected, the appellant has approached this Court.Â

Original Suit No. 26 of 2008 was instituted for declaration of plaintiff’s right, title and interest over   schedule “I†properties and for

recovery of possession by removing the structure standing thereon. The suit was dismissed by judgment dated 21.09.2015 and the decree in original

suit was prepared and signed on 29.09.2015. The plaintiff filed Civil Appeal No. 25 of 2015 challenging the judgment and decree passed in Original

Suit No. 26 of 2008. In the pending appeal, the plaintiff-appellant filed an application on 04.03.2017 under Order XLI Rule 27 C.P.C read with

Section 151 C.P.C for producing certain documents. This application has been dismissed by the appellate court observing that the documents as per

list dated 01.12.2011 are not relevant documents for just decision of the case. Â

Sub-rule 1 to Rule 27 of Order XLI C.P.C mandates that the parties shall not be entitled to produce additional evidence, whether oral or

documentary in an appeal, however, under sub-rule 1 to Rule 27 three statutory exceptions to the main rule have been carved out. Rule 27(1)(a)

provides that if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, such document

may be taken as evidence in the appeal. Â

Contending that the documents sought to be produced as evidence in rebuttal to the municipal receipt produced by the defendants vide application

dated 28.08.2015 was dismissed on 21.09.2015 and on the same day Original Suit No. 26 of 2008 was dismissed, Mr. Rajiv Nandan Prasad, the

learned counsel for the petitioner submits that at this stage a finding that these documents are not relevant documents for just decision in the appeal

cannot be recorded by the appellate court. Â

Opposing the challenge thrown by the petitioner to the impugned order dated 17.08.2017, Mr. Baleshwar Yadav, the learned counsel for the

respondents submits that the application dated 28.08.2015 was dismissed as not pressed and while so, the petitioner is precluded from contending that

the trial court has illegally declined to admit the documents which were sought to be produced vide application dated 28.08.2015.Â

Whether a document has not been admitted in evidence which ought to have been admitted and whether a document or any witness is required to

be produced/examined to enable the appellate court to pronounce judgment or for any other substantial cause, are the issues which the appellate court

can decide only at the stage of final hearing and not before that. Only after hearing both the sides, scrutinizing evidence of both the parties and

hearing arguments on both sides on the legality of the order under challenge, the appellate court can form an opinion whether any additional evidence

can be admitted in the pending appeal or a witness needs to be examined for arriving at a just decision in the case. Precisely speaking, only after

both the parties have closed their arguments, a decision on an application under Order XLI Rule 27 C.P.C can be taken by the appellate court. A

glance at impugned order dated 17.08.2017 would disclose that before final hearing in the appeal; in Civil Appeal No.25 of 2015 an application under

Order XXXIX Rule 1 and 2 C.P.C is still pending for decision by the appellate court, the appellate court could not have recorded a finding that the

documents vide application dated 04.03.2017   are not relevant for just decision in the appeal. Â

In the above facts, finding serious infirmity in the impugned order dated 17.08.2017 it is set-aside, however, the petitioner who filed the said

application, pressed it, argued it and when it was dismissed, raised a grievance on the proprietary of the impugned order dated 17.08.2017 must be

saddled with cost with Rs. 10,000/-, which shall be paid to the respondents within 4 weeks.  Â

The writ petition stands allowed, on the above terms. The application dated 04.03.2017 is restored to its original file and it shall be taken up for

hearing, if pressed by the appellant, on conclusion of arguments of both the parties.Â

Interim order dated 14.02.2018 stands vacated.