NEUTRAL CITATION
C/SCA/1793/2016 ORDER DATED: 13/09/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1793 of 2016
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PRAKASH KUNDANDAS AHUJA
Versus
GODHRA MUNICIPALITY & 1 other(s)
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Appearance:
MR HENIL M SHAH(10677) for the Petitioner(s) No. 1
for the Respondent(s) No. 2.1
DECEASED LITIGANT for the Respondent(s) No. 2
HL PATEL ADVOCATES(2034) for the Respondent(s) No. 2.2,2.3
MR MEHUL H RATHOD(701) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 13/09/2023
ORAL ORDER
1. Heard learned advocate Mr. Henil Shah for the petitioner and learned advocate Mr. Maharishi Patel for HL Patel Advocates for the respondents.
2. Order passed below Exh.40 in Regular Civil Appeal No.91 of 2007 pending before District Court, Godhra, Panchmahals is under challenge in this petition under Article 227 of the Consitution of India.
3.1. Briefly stated facts of the case are as under :-
3.2. One Prakash Kundandas Ahuja had filed Regular Civil Suit No.412 of 2001 before the Civil Court, Godhra seeking relief that Nagar Palika and their officers may not disturb plaintiff from Page 1 of 4 Downloaded on : Sat Sep 16 17:03:54 IST 2023 NEUTRAL CITATION C/SCA/1793/2016 ORDER DATED: 13/09/2023 undefined carrying construction upon the shop which is taken on rent by the plaintiff from Nagar Palika. One Pradip Narayandas Sukhadiya filed application at Exh.10 to join him as defendant. The application was allowed and as such Pradip was joined as defendant no.2 in the suit. The suit was partly allowed in favour of the plaintiff. The Court below has restrained defendant no.1 by issuing appropriate injunction not to restrain plaintiff from carrying construction on the rented premises. Third party - Pradipkumar Sukhadiya filed Regular Civil Appeal No.91 of 2007 before the District Court, Godhra challenging the judgment and decree passed in Regular Civil Suit No.412 of 2001 and in that Appeal, application under Order 41 Rule 27 of CPC was filed (Annexure -E) . The Court below after hearing learned advocates for both the sides, allowed the application for production of additional evidence. This order has given rise to the present petition.
4. During arguments, learned advocates for both the sides agreed that issue of producing additional evidence under Order 41 Rule 27 of CPC has been addressed and concluded by the Apex Court in the case of Union of India v/s. Ibrahim Uddin [2012 (8) SCC 148]. The Apex Court has observed in para 37, 38 and 41 as under :-
"37. To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself.
The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in Page 2 of 4 Downloaded on : Sat Sep 16 17:03:54 IST 2023 NEUTRAL CITATION C/SCA/1793/2016 ORDER DATED: 13/09/2023 undefined respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage. Stage of Consideration :
38. 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).
41. 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 Page 3 of 4 Downloaded on : Sat Sep 16 17:03:54 IST 2023 NEUTRAL CITATION C/SCA/1793/2016 ORDER DATED: 13/09/2023 undefined 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. In the instant case, the application under Order XLI Rule 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored.
5. Since the issue before this Court is squarely covered by the observations of Apex Court, no further discussion is required.
6. For the foregoing reasons, the petition is disposed of with direction to ignore the order passed below Exh.40 in Regular Civil Appeal No.91 of 2007. Application Exh.40 is to be decided along with main Appeal as per observations and findings by the Apex Court as stated in the above case. Notice discharged. Interim relief, if any, stands vacated.
7. Considering the age of appeal, it requires expedite hearing. In view of that aspect, learned Appellate Court is directed to hear and decide the Regular Civil Appeal No.91 of 2007 as early as possible preferably within 3 months from the date of receipt of this order.
(J. C. DOSHI,J) SATISH Page 4 of 4 Downloaded on : Sat Sep 16 17:03:54 IST 2023