Uttarakhand High Court
Rishi Kumar Agarwal vs Indian Oil Corporation Ltd. on 22 September, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition No. 2386 (M/S) of 2017
Rishi Kumar Agarwal ....... Petitioner
versus
Indian Oil Corporation Ltd. ....... Respondent
Mr. P.S. Bisht, Advocate for the petitioner.
Mr. V.K. Kohli, Sr. Advocate assisted by Ms. Rajni Supiyal, Advocate for
the respondent.
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 quash the order dated 25.08.2017, passed by Addl. District Judge, Ramnagar, District Naintial, in Civil Appeal no. 06 of 2013, Rishi Kumar vs Indian Oil Corporation Ltd. and further to allow the application under Order 41 Rule 27 CPC filed by the petitioner.
2) Order dated 25.08.2017 is under challenge in present writ petition. Certain documents were prayed to be brought on record by the appellant / petitioner before the lower appellate court under Order 41 Rule 27 CPC. Such an application was dismissed. Hence, present writ petition.
3) It is the submission of learned Senior Counsel for the respondent IOC that the documents, as desired, have already been submitted by the IOC in Writ Petition no. 274 (M/S) of 2011 as directed by the co-ordinate bench of this Court, vide order dated 17.02.2011.
24) Learned counsel for the respondent IOC 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 lower appellate court only at the time of final disposal of the civil appeal.
5) 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 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 3 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."
6) The lower appellate court, therefore, ought to have decided the application under Order 41 Rule 27 CPC of the appellant / petitioner only at the time of final disposal of civil appeal, as above.
7) The order impugned dated 25.08.2017 is, accordingly, modified by directing that the application under Order 41 Rule 27 CPC shall be considered by the lower appellate court at the time of final disposal of civil appeal no. 06 of 2013 in view of Ibrahim Uddin's decision (supra).
8) The writ petition stands disposed of in terms of above.
[Stay application no. 12129 of 2017 also stands disposed of.] (U.C. Dhyani, J.) Dt. September 22, 2017 Negi 4