Gujarat High Court
Naynaben Chandubhai Rana vs Nirmalsinh Jijubha Rana on 4 September, 2025
NEUTRAL CITATION
C/SCA/7366/2018 ORDER DATED: 04/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7366 of 2018
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NAYNABEN CHANDUBHAI RANA
Versus
NIRMALSINH JIJUBHA RANA & ORS.
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Appearance:
MR NIRAV C SANGHAVI(5950) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 2
MR.DHARMENDRA S BHAYANI(9886) for the Respondent(s) No. 1,2.1,2.2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 04/09/2025
ORAL ORDER
1. Rule returnable forthwith. Learned advocate Mr. Dharmendra S. Bhayani waives service of notice of rule on behalf of respondents.
2. With the consent of the parties, the matter is taken up for final hearing.
3. The present writ application is filed under Article 227 of the Constitution of India seeking following relief :-
"(A) Your Lordship may be pleased to admit this Special Civil Application.
(B) Your Lordship may be pleased to allow this Special Civil Application or by issuing appropriate writ, order direction for quashing and setting aside the impugned order passed by the Learned 3rd Page 1 of 6 Uploaded by SALIM(HC01108) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:18:52 IST 2025 NEUTRAL CITATION C/SCA/7366/2018 ORDER DATED: 04/09/2025 undefined Additional District Judge, Limbdi in Regular Civil Appeal No. 14 of 2016 below exhibit 17 which is decided on dated 28.02.2018 in the interest of justice.
(C) Pending admission hearing and final disposal of the petition this Hon'ble Court may be pleased to stay implementation, operation of the execution and impugned order which was passed by the Learned 3 rd Additional District Judge, Limbdi in Regular Civil Appeal No. 14 of 208 below exhibit 17 which is decided dated 28.02.2018 in the interest of justice.
(D) Pending admission hearing and till final disposal of present petition, this Hon'ble court may be pleased to stay further proceedings of Regular Civil Appeal No. 14 of 2016 pending before 3 rd Additional District Judge, Limbdi in the interest of justice.
(E) This Hon'ble Court may be pleased to grant such other and further relief as deemed just and proper in the interest of justice."
4. At the outset, learned advocate Mr. Nirav C. Sanghavi for the petitioner would submit that the impugned application filed below Exh.17 in Regular Civil Appeal No. 14 of 2016 came to be rejected by the appellate Court, though the same was filed under Order 41 rule 27 of CPC, inasmuch as the impugned application ought to have been heard and decided by the appellate Court at the time of final hearing of the said regular civil appeal.
4.1 In support of his argument, learned advocate Mr. Sanghavi would refer and rely upon the following decisions of the Hon'ble Apex Court.
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(i) Union of India Vs. Ibrahim Uddin and another reported in (2012) 8 SCC 148.
(ii) Malayalam Plantations Ltd. State of Kerala and another reported in (2010) 13 SCC 487.
5. Per contra, learned advocate Mr. Dharmendra S. Bhayani for the respondents is enable to dispute the ratio laid down by the Hon'ble Apex Court in the cited decisions but would contend that there is no merit in the application, inasmcuh as ingredients of Order 41 rule 27 of CPC was not made in the impugned application. Nonetheless, learned advocate for the respondents would request this Court that the matter may be remanded back to the appellate Court and the impugned application may be decided at the time of hearing the said appeal.
6. Having heard learned advocates for the respective parties, issue germane in the application, according to this Court, is squarely covered by the decisions of the Hon'ble Apex Court in the case of (i) Ibrahim Uddin (supra), wherein held thus :-
"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 Page 3 of 6 Uploaded by SALIM(HC01108) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:18:52 IST 2025 NEUTRAL CITATION C/SCA/7366/2018 ORDER DATED: 04/09/2025 undefined 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 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.
(ii) Malayalam Plantations (supra), wherein held thus :-
"16. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature.
17. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case."
7. In light of aforesaid as held by the Hon'ble Apex Court in the above referred decisions, and so also, there is Page 4 of 6 Uploaded by SALIM(HC01108) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:18:52 IST 2025 NEUTRAL CITATION C/SCA/7366/2018 ORDER DATED: 04/09/2025 undefined consensus ad-idem between the learned advocates for the respective parties that, the impugned application requires to be heard and decided along with the appeal. In that view of the matter, the impugned order requires to be quashed and set aside.
8. Accordingly, the impugned order dated 28.02.2018 passed by the 3rd Additional District Judge, Limbdi below Exh. 17 in Regular Civil Appeal No. 14 of 2016 is hereby quashed and set aside. Consequently, the impugned application filed below Exh. 17 in the aforesaid appeal, is restored back on its file and to be heard and decided along with the Regular Civil Appeal No. 14 of 2016 in accordance with law, without being influenced by any of the observations so made by the appellate Court while passing the order impugned in the present writ application and by this Court in its any order including present one.
9. It is further made clear that this Court has neither gone into nor examined the merit of the impugned application as the impugned order is quashed and set aside due to the aforesaid reasons and there is consensus ad-idem between the parties.
10. As the said regular appeal instituted in the year 2016, if Page 5 of 6 Uploaded by SALIM(HC01108) on Tue Sep 09 2025 Downloaded on : Tue Sep 09 22:18:52 IST 2025 NEUTRAL CITATION C/SCA/7366/2018 ORDER DATED: 04/09/2025 undefined the parties to the appeal extend their co-operation and support, the appellate Court shall expedite the hearing of the aforesaid appeal and same be decided as early as possible preferably on or before 30th June, 2026.
11. In view of the forgoing reasons, the present writ application is partly allowed to the aforesaid extent. Rule is made absolute accordingly. Interim relief, if any, granted earlier stands vacated forthwith.
Direct service is permitted.
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