Uttarakhand High Court
Javed vs Sarafat Hussain on 25 July, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 1745 (M/S) of 2017
Javed ....... Petitioner
versus
Sarafat Hussain ....... Respondent
Mr. J.C. Belwal and Mr. Virendra Singh Rawat, Advocates for the
petitioner.
U.C. Dhyani, J. (Oral)
\ By means of present writ petition, the petitioner seeks to issue a writ, order or direction in the nature of certiorari to call the record of First Appeal no. 24 of 2015, Javed vs Sharafat from the court of District Judge, Nainital and issue an order in the nature of certiorari to quash and set aside the impugned judgment and order dated 18.04.2017, passed by learned District Judge, Naintial, in First Appeal no. 24 of 2015, Javed vs Sharafat.
2) During the pendency of civil appeal, an application under Order 41 Rule 27 was filed by the defendant-respondent. The same was objected to by the plaintiff-petitioner-appellant. Learned lower appellate court inferred that the documents enclosed therewith seem to be necessary for just decision of the appeal and, therefore, allowed such an application under Order 41 Rule 27 CPC. Documents were directed to be kept on record. It was also directed that documents in rebuttal may be filed within 15 days. Aggrieved against the order dated 18.04.2017, passed by learned lower appellate court 2 (District Judge, Nainital), present writ petition has been filed.
3) Learned counsel for the petitioner placed a decision of Hon'ble Supreme Court in Union of India vs. Ibrahim Uddin & another, (2012) 8 SCC 148 and argued that application under Order 41 Rule 27 CPC should have been considered by the appellate court only at the time of final disposal of the civil appeal.
4) In Ibrahim Uddin's case (supra), it was observed by Hon'ble Supreme Court that:
"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. 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.
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 3 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."
5) The lower appellate court, therefore, ought to have decided the application under Order 41 Rule 27 CPC only at the time of final disposal of civil appeal, as above.
6) The order impugned cannot sustain in the eye of law. The impugned order dated 18.04.2017 is, accordingly, set aside. The court below is directed to decide the application under Order 41 Rule 27 CPC at the time of final disposal of regular civil appeal in view of Ibrahim Uddin's decision (supra).
7) The writ petition stands disposed of in terms of above.
8) Since present writ petition is being decided without notice to the respondent, therefore, liberty is granted to him to move for recall of this order, if he feels aggrieved with the same.
[Stay application no. 8582 of 2017 also stands disposed of.] (U.C. Dhyani, J.) Dt. July 25, 2017 Negi 4