Gujarat High Court
Shri Satyanarayan Bhagvan Mandir Trust vs Decd. Bhaiya Jagdishbhai Somabhai ... on 14 October, 2025
NEUTRAL CITATION
C/SCA/10411/2021 ORDER DATED: 14/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10411 of 2021
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 10411 of 2021
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SHRI SATYANARAYAN BHAGVAN MANDIR TRUST & ANR.
Versus
DECD. BHAIYA JAGDISHBHAI SOMABHAI THROUGH LHS & ORS.
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Appearance:
MR NK MAJMUDAR(430) for the Petitioner(s) No. 1,2
MR RR VAKIL(964) for the Respondent(s) No. 1.1,1.2,1.3
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 14/10/2025
ORAL ORDER
1. Heard learned Advocate Mr. N. K. Majmudar for the petitioners and learned Advocate Mr. R. R. Vakil for the respondents.
2. Rule returnable forthwith. Learned Advocate Mr. R. R. Vakil waives service of notice of rule on behalf of the respondents.
3. The present writ application is filed under Article 227 of the Constitution of India, seeking the following relief:
"A) Your Lordship be pleased to admit this petition;Page 1 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 08:29:17 IST 2025
NEUTRAL CITATION C/SCA/10411/2021 ORDER DATED: 14/10/2025 undefined B) Your Lordship be pleased to quash and set aside order dated 25.03.2021 passed in Regular. Civil Appeal No. 29 of 2016 passed below Exh-20, passed by the Ld.3rd Additional District Judge Kheda at Nadiad by which the application preferred under Or.41, R.27 of CPC,1908 i.e. seeking production of additional evidence at appellate stage came to be rejected.
C) Your Lordship be pleased be pass interim order and be pleased to stay the further proceedings in connection Regular. Civil Appeal No. 29 of 2016 pending before Ld.3rd Additional District Judge Kheda at Nadiad till final disposal of this petition. D) Your Lordship be pleased to allow the pass such orders as thought fit in the interest of justice."
4. At the outset, learned Advocate Mr. Majmudar states that impugned application filed under Order 41, Rule 27 of the Code of Civil Procedure, 1908, came to be rejected by the appellate court, which could not have been done so, inasmuch as, as per the settled legal position of law, appellate court requires to hear and decide such application along with the appeal.
4.1. To buttress his argument, learned Advocate Mr. Majmudar would rely upon the decision of Co-ordinate Bench of this Court:
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NEUTRAL CITATION C/SCA/10411/2021 ORDER DATED: 14/10/2025 undefined
(i) Mukulbhai Rajendra Thakor, Trustees of Shri Sad Vidya Mandal V/s. Upendrabhai Anupam Joshi reported in 2018 SCC OnLine Guj 4847.
4.2. Making the above submissions, learned Advocate Mr. Majmudar would request this Court to allow the present writ application.
5. Per contra, learned Advocate Mr. Vakil would submit that once the appellate court has already decided the impugned application on merit, whereby, it ultimately held that the impugned application would not fall within the scope and ambit of Order 41, Rule 27 of CPC, this Court should not interfere with the impugned order.
5.1. At the same time, learned Advocate Mr. Vakil would request this Court that if this Court ultimately accept the prayer made by the petitioner herein, the matter may be remanded back to the appellate court and the impugned application may be heard and decided along with the appeal, which is already listed for final hearing before the appellate court.
6. Having heard learned Advocates appearing for the respective parties, the issue germane in the present writ application is Page 3 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 08:29:17 IST 2025 NEUTRAL CITATION C/SCA/10411/2021 ORDER DATED: 14/10/2025 undefined squarely covered by the decision of the Honourable Supreme Court of India in the case of Union of India V/s. Ibrahim Uddin and another reported in 2012 (8) SCC 148, which is considered by Coordinate Bench of this Court in the case of Mukulbhai Rajendra Thakor (supra) (his Lordship Mr. Justice N. V. Anjaria as he then was), wherein it held thus:
"5. What was held by the Supreme Court in Malayamal Plantations Ltd. ((2010) 13 SCC 487 :
AIR 2011 SC 559) (supra) was reaffirmed. In Union of India v. Ibrahim Uddin, ((2012) 8 SCC 148 : (2013 AIR SCW 2752)), the Supreme Court with elaboration considered the scope and applicability of provisions of Order XLI, Rule
27. In that it also considered the aspect as to at what stage the application under Order XLI, Rule 27 could be considered especially at the appellate stage. The relevant paragraphs from the said are reproduced hereinunder, "Stage of Consideration:
49. An application under Order XLI, Rule 27 of the Code of civil Procedure 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 Page 4 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 08:29:17 IST 2025 NEUTRAL CITATION C/SCA/10411/2021 ORDER DATED: 14/10/2025 undefined 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, 1951 SCC 178 : AIR 1951 SC 193; and Natha Singh v. The Financial Commissioner, Taxation, Punjab, (1976) 3 SCC 28 : AIR 1976 SC 1053).
50. In Parsotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143, it was held:
"The provisions of S. 107 as elucidated by 0.41, R. 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under R. 27, Cl.(1)(b) it is only where the appellate Court "requires" it (i.e. finds it needful). ......... The legitimate occasion for the exercise of this discretion is not whenever be fore the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent", it may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by R. 27(2) to record its reasons for so doing, and under R. 29 must specify the points to which the evidence is to be confined and record on its proceedings me points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case..." (Emphasis added) (See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 PC 128) Page 5 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 08:29:17 IST 2025 NEUTRAL CITATION C/SCA/10411/2021 ORDER DATED: 14/10/2025 undefined
51. In Arjan Singh v. Kartar Singh, (1951 SCC 178 : AIR 1951 SC 193) (supra), this Court held:
"..........If the additional evidence was al lowed to be adduced contrary to the principles governing me reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent............. The order allowing the appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evi dence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment"..........
(Emphasis added)
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 me time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion mat 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." 5.1. Thus, it is clear from the above pronouncements of the Apex Court that the application for taking additional evidence when made at the appellate stage, it is to be considered at the stage after appreciation of the evidence on record. In another words, it is Page 6 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 08:29:17 IST 2025 NEUTRAL CITATION C/SCA/10411/2021 ORDER DATED: 14/10/2025 undefined to be kept pending till the hearing of the appeal so that the appellate court could consider at the time of deciding appeal as to whether the additional evidence sought to be produced are necessary to be considered and are relevant. The discretion to allow or reject the additional evidence could be judicially exercised only at the stage of finally considering the appeal. In view of the above position clearly emerging from Ibrahim Uddin, (2013 AIR SCW 2752) (supra) learned Principal District Judge, Bharuch, ought not to have rejected the applications. Therefore, in view of law laid down in Malyalam Plantations Ltd. (supra) and in Ibrahim Uddin (supra), learned Additional District Judge, Bharuch, committed an error in rejecting the application Exh. 29 of the petitioners."
(emphasis supplied)
7. No other and further submissions are made.
8. Thus, in view of the aforesaid, nothing further requires to be looked into by this Court in the present case, inasmuch as the impugned order passed by the appellate court, whereby, it rejected the impugned application filed under Order 41, Rule 27 of CPC, requires to be quashed and set aside and the matter requires to be remanded back to the appellate court to decide Page 7 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 08:29:17 IST 2025 NEUTRAL CITATION C/SCA/10411/2021 ORDER DATED: 14/10/2025 undefined afresh the impugned application filed under Order 41, Rule 27 of CPC along with deciding the regular civil appeal pending before it.
9. It goes without saying that the appellate court requires to adjudicate the impugned application afresh on its own merit along with the appeal.
10. It is further made clear that this Court has neither gone into nor examined the merits of the impugned application, which requires to be decided by the appellate court.
11. In view of the foregoing reasons, the present writ application requires to be allowed, which is hereby partly allowed to the aforesaid extent.
12. Consequently, the impugned order dated 25th March 2021 passed by the 3rd Additional District Judge, Kheda at Nadiad below Exhibit 20 in Regular Civil Appeal Number 29 of 2016, is hereby quashed and set aside.
13. Accordingly, the impugned application filed below Exhibit 20 in the aforesaid appeal is restored back on its original file and to be heard and decided along with the aforesaid appeal. Page 8 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 08:29:17 IST 2025
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14. Rule made absolute accordingly. No order as to cost. Direct service is permitted.
15. Civil application would not survive.
(MAULIK J.SHELAT,J) NILESH Page 9 of 9 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Thu Oct 16 2025 Downloaded on : Sat Oct 18 08:29:17 IST 2025