Order 41, Rule 27 CPC Additional evidence before Appellate Court Held, that application for taking additional evidence on record at an appellate stage is to be heard at time of final hearing of appeal First Appellate Court had rejected
IDRISH ALI vs GANESH CRPIO 215/22 02/11/22 [ DEVASHIS JJ ]
[ GAUHATI HIGH COURT ]
Order 41, Rule 27 CPC Additional evidence before Appellate Court Held, that application for taking additional evidence on record at an appellate stage is to be heard at time of final hearing of appeal First Appellate Court had rejected the said application even before hearing of appeal has commenced and also without taking into consideration as to whether said evidence is required to be taken on record in order to pronounce judgment or for any substantial cause The reason assigned that plaintiff/appellant is trying to fill up lacuna, is not relevant for adjudication of an application under Order 41, Rule 27 (1) of Code Impugned order set aside.
Relevant Paras:
6. From the perusal of the above quoted paragraphs of the judgment, it would be clear that the Supreme Court observed that when an application for taking additional evidence on record at an appellate stage is filed, the same is to be heard at the time of final hearing of the appeal at the stage when after appreciating the evidence on record, the Court reaches the conclusion that the additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. The Supreme Court further observed that in case the 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 a 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. Now coming to the facts of the instant case, it would be seen that the Appellant/the Plaintiff had filed this application under Order XLI Rule 27 (1) (b) of the Code to adduce additional evidence at the appellate stage. The reason assigned in the application was that the certified copies of Exhibit 4 and 6 were duly adduced during the trial. However, the Trial Court rejected the same and on account thereof the suit was dismissed for which the Appellant/the Plaintiff have filed the application for adducing the registered Deeds of Sale bearing Nos. 2983/2009 and 2984/2009 in original.
7. The learned First Appellate Court contrary to the law laid down by the Supreme Court in the case of Ibrahim Uddin (supra) as quoted hereinabove had rejected the said application even before the hearing of the appeal has commenced and also without taking into consideration as to whether the said evidence is required to be taken on record in order to pronounce the judgment or for any other substantial cause. The reasons assigned in the impugned order is that the Plaintiff/the Appellate is trying to fill up the lacuna which is not relevant for adjudication of an application under Order XLI Rule 27(1) (b) of the Code in as much as observed by the Supreme Court the reason has to be as to whether such additional evidence is required to be taken on record in order to pronounce the judgment or for any other substantial cause. Accordingly, the impugned order dated 27/7/2022 is interfered with and set aside.
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Md Idrish Ali VERSUS GANESH DAS AND 4 ORS.
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