Madhya Pradesh High Court
Sumati Jain vs Pradeep Kumar Jain on 11 March, 2025
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
NEUTRAL CITATION NO. 2025:MPHC-GWL:5859
1 MP-5430-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 11th OF MARCH, 2025
MISC. PETITION No. 5430 of 2024
SUMATI JAIN AND OTHERS
Versus
PRADEEP KUMAR JAIN
Appearance:
Shri Sameer Kumar Shrivastava - Advocate for the petitioners.
Shri Mahesh Goyal - Advocate for the respondent.
ORDER
The present petition, under Article 227 of the Constitution of India, has been filed by the petitioners being aggrieved by the order dated 12.09.2024 passed by the First District Judge, Shivpuri/Appellate Court in Civil Appeal No.RCA/23 of 2023 whereby two applications; one under Order 6 Rule 17 of CPC and another under Order 41 Rule 27 of CPC preferred by the respondent/appellant were allowed and he was permitted to carry out the amendment in the plaint as well as was allowed to bring certain documents on record.
2. Assailing the aforesaid order, learned counsel for the petitioners, who are respondents in the appeal, has submitted that the said order is per se illegal, as the applications preferred by the present respondent/appellant could only have been considered at the time of hearing of appeal on merits and not otherwise, thus is de-hors the settled principle of law as enunciated Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5859 2 MP-5430-2024 by this Court as well as the Hon'ble Apex Court in the various pronouncements and therefore, liable to be quashed.
3. Learned counsel for the petitioners, while referring to the orders passed by this Court in the matters of Khemchand Mulchand vs. Govt. of M.P., Bhopal reported in 1972 MPLJ 524 ; Suresh Prasad & Others vs. Ram Krishna & Others reported in 2002 (3) M.P.L.J. 208 ; Betu Lal Lodhi vs. Mst. Maharaniya Lodhi reported in 2023 (II) MPWN 29 as well as the judgment passed by the Hon'ble Apex Court in the matter of Union of India vs. Ibrahim Uddin & Another reported in (2012) 8 SCC 148, has contended that any application preferred alongwith the appeal either it may be under Order 6 Rule 17 of CPC or under Section 151 of CPC (though it should have been under Order 41 Rule 27 of CPC) is required 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 or bearing on the issues involved and not otherwise.
4. It was further contended that 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 and 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 Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5859 3 MP-5430-2024 it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court.
5. It was further contended that from the aforesaid judgments, it is crystal clear that an 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.
6. It was further contended that the Apex Court in the matter of Union of India vs. Ibrahim Uddin (supra) has even gone to extent that if any 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.
7. On the basis of the aforesaid arguments, it was prayed that the impugned order whereby the applications under Order 6 Rule 17 of CPC and under Order 41 Rule 27 of CPC respectively were allowed being per-se illegal and perverse deserves to be set aside.
8. On the other hand, learned counsel for the respondent, while supporting the impugned order, had relied upon the provisions of Section 107 of CPC which dealt with the powers of the Appellate Court which provides that the Appellate Court shall have powers to determine the case Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5859 4 MP-5430-2024 finally, to remand the case, to frame issues and refer them for trial, to take additional evidence or to require such evidence to be taken and for the aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein and as the Appellate Court enjoins the similar powers as to that of the Trial Court and also the law with regard to making amendment in the plaint at any stage is very settled as well as the law with regard to taking additional documents on record is also very well settled, the powers exercised by the Appellate Court at the very initial stage of hearing of the appeal cannot be said to be perverse, thus, it was submitted that present petition being devoid of any merits deserves to be dismissed.
9. Heard counsel for the parties and perused the record.
10. The Coordinate Bench of this Court in the matter of Khemchand Mulchand vs. Govt. of M.P. (supra) while appreciating the similar controversy has held in paras 3 and 5 as under:
"3. In my judgment, the learned Additional District Judge followed an altogether erroneous course in considering the application of the non-applicants Nos.4 and 5 for amendment of their written statement and their application under Order 41. rule 27 of the Code without first hearing the appeal on merits. The powers of the appellate Court to take additional evidence are regulated by Order 41, rule 27 (1). Under that rule the appellate Court can permit the parties to Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5859 5 MP-5430-2024 an appeal to produce additional evidence if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the appellate Court requires any document or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.
These conditions must be satisfied before additional evidence can be allowed to be tendered at the appellate stage. The rule is not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak part of his case and to fill up an omission in appeal. Now, the question whether the Court from whore decree the appeal is preferred has refused to admit evidence which ought to have been admitted or the question whether the appellate Court requires additional evidence to enable it to pronounce judgment or whether there is any other substantial cause for permitting additional evidence cannot in its very nature be decided unless and until the appeal is first heard on merits. As pointed out by the Privy Council in Parsotim v. Lal Mohar reported in AIR 1931 PC 143 and by the Supreme Court in Arjan Singh v. Kartar Singh and others reported in AIR 1951 SC 193, the legitimate occasion for admitting additional evidence in appeal is when on examining the Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5859 6 MP-5430-2024 evidence as it stands some inherent lacuna or defect calling for the exercise of the discretion under Order 41, rule 27 (1) becomes apparent. A party may during the pendency of an appeal move the Court for being allowed to produce additional evidence; but the appellate Court is clearly not in a position to decide whether additional evidence should or should not be allowed to be produced unless and until the appeal is first heard on merits. This seems to be plain enough and does not require elaboration.
5. What has been said in relation to an application under Order 41. rule 27 (1) applies equally to the disposal of an application for amendment of pleadings made at the appellate stage. The question whether a party should or should not be allowed to amend its pleadings at the appellate stage cannot in its very nature be decided unless the appeal is first heard on merits. The order of the Additional District Judge, Chhindwara, permitting the non-applicants Nos. 4 and 5 to produce additional evidence and to amend their written statement must, therefore, be set aside and the Additional District Judge must be directed to consider the said non- applicants' application under Order 41. rule 27 and the application for amendment of the written statement after hear-ing the appeal on merits."
11. Another Coordinate Bench of this Court in the matter of Suresh Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5859 7 MP-5430-2024 Prasad & Others vs. Ram Krishna (supra) while appreciating the similar controversy has held in paras 18 and 19 as under:
"18. It was further observed in the said case that what has been said in relation to application (LA No. 3) under Order 41. Rule 27(1), Civil Procedure Code, also applies to the disposal of an application for amendment of pleadings made at the appellate stage and that the question whether a party should or should not be allowed to amend its pleading at the appellate stage cannot in its very nature be decided, unless the appeal is first heard on merit.
19. In the instant case, as noticed earlier, the lower Appellate Court without considering the appeal on merit, proceeded to decide the application (I.A.No. 3) under Order 41. Rule 27 of Civil Procedure Code and application (I.A.No.2) for amendment under Order 6, Rule 17, Civil Procedure Code."
12. Likewise, the Hon'ble Apex Court in the matter of Union of India vs. Ibrahim Uddin (supra) in paras 49 and 52 has held has under:
"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 Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5859 8 MP-5430-2024 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).
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 Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5859 9 MP-5430-2024 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."
13. In a very recent decision, the Coordinate Bench of this Court in the matter of Betu Lal Lodhi v. Mst. Maharaniya Lodhi reported in 2023 (II) MPWN 29 after appreciating the dictum of the Hon'ble Apex Court in the matter of Union of India vs. Ibrahim Uddin (supra), has held in para 7 as under:
"7. In view of the aforesaid settled legal position, this Court is of the considered opinion that the impugned order allowing the application u/o 41 rule 27 CPC is not sustainable and deserves to be set aside with the direction to learned first appellate Court to reconsider and decide the application under Order 41 rule 27 CPC afresh on its own merits after hearing the pending regular civil appeal on merits, without being influenced by any of the observations made by this Court today."
14. From the above enunciations, the legal position which is culled out is that the applications under Order 6 Rule 17 of CPC as well as under
Section 151 of CPC and no matter what applications filed at appellate stage are to considered at the at the time of hearing of appeal finally. The reasons behind the aforesaid is that at the time of final hearing of the appeal, it can be found out by the Appellate Court whether the said amendment or the Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:5859 10 MP-5430-2024 documents or the evidence sought to be adduced have any relevance or bearing on the issues involved. As the admissibility of additional evidence or the amendment is dependent 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 and not on 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, thus the true test test as laid down by the Hon'ble Supreme Court 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.
15. As it has been held by the Hon'ble Apex Court in the matter o f Union of India vs. Ibrahim Uddin (supra) 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 the amendment and the additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause, this Court doesn't find any reason to depart from the aforesaid construction made by the Hon'ble Apex Court.
16. In the present case, the applications have already been allowed by the Appellate Court vide the impugned order dated 12.09.2024, which being in total non-application of mind, cannot be sustained and accordingly, it is hereby set aside. Learned Appellate Court is therefore directed to consider those applications in accordance with law at the time of final hearing.
Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:5859 11 MP-5430-2024
17. With the aforesaid observations, the present petition is allowed and disposed of.
(MILIND RAMESH PHADKE) JUDGE pwn* Signature Not Verified Signed by: PAWAN KUMAR Signing time: 12-03-2025 06:49:48 PM