Ram Prakash & Others vs Shail Goyal & Others

Manoj K. Tiwari, J

Father of the petitioners, who was tenant in respect of property situate at 48/1 Shivaji Marg, Kanwali Road, Dehradun, filed a civil suit for permanent prohibitory injunction against the landlord in the Court of Munsif, Dehradun in the year 1994, which was registered as Suit No.421 of 1994. The said suit was dismissed by 2nd Additional Civil Judge (S.D.), Dehradun vide judgment and order dated 20. 03.2014.

It is pertinent to mention here that during pendency of the said suit, both, tenant as well as landlord, passed away, consequently, their legal representatives were substituted.

Feeling aggrieved, tenants (petitioners herein) filed Civil Appeal No. 72 of 2014, which is pending before learned 3rd Additional District Judge, Dehradun. Tenants (petitioners herein) moved two applications before learned appellate court, namely, one under Order 41 Rule 25 of C.P.C. for framing additional issues and second under Order 41 Rule 27 of C.P.C. for production of additional evidence. Both these applications have been rejected by learned appellate court vide order dated 5. 10.2018. Thus, feeling aggrieved, petitioners have approached this Court.

Heard learned counsel for the parties and perused the records.

So far as rejection of petitioners' application under Order 41 Rule 25 of C.P.C. is concerned, this Court does not find any infirmity in the order passed by learned appellate court. Learned appellate court has rightly held that additional issues, sought to be framed by the petitioners, are already included in the issue Nos. 1, 2 & 6 framed by learned trial court. Therefore, no interference is called for in the impugned order as far as rejection of application under Order 41 Rule 25 of C.P.C. is concerned.

However, rejection of petitioners' application under Order 41 Rule 27 of C.P.C. for production of additional evidence is interferable in view of the law laid down by Hon'ble Supreme Court in the case of Union of India Vs Ibrahim Uddin & another reported in (2012) 8 SCC 148. Para 52 of the said judgment is extracted below:-

"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."

In such view of the matter, rejection of petitioners' application under Order 41 Rule 27 of C.P.C. cannot be sustained, therefore, the impugned order is set aside so far as it relates to application under Order 41 Rule 27 of C.P.C. for production of additional evidence. Learned appellate court is directed to consider petitioners' application for production of additional evidence at the time of final hearing of the appeal.

Writ petition is, therefore, partly allowed to the extent indicated above.

Since the suit was filed way back in the year 1994 and 25 years have already gone by, therefore, this Court hopes and expects that learned appellate court will decide the appeal as early as possible, preferably within six months from the date of production of certified copy of this order.