Bombay High Court
Ramkisan Haribhau Mogal And Anr vs Achutrao Appasaheb Shejul And Ors on 29 August, 2017
Bench: S.P. Deshmukh
{1} wp10166-12
drp
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10166 OF 2012
1. Ramkisan s/o Haribhau Mogal PETITIONERS
Age - 39 years, Occ - Agri & Service
R/o House No. 12, Pranav Apartment,
Dashmesh Nagar, Jay Nagar,
Osmanpura, Aurangabad
2. Ramanand s/o Haribhau Mogal,
Age - 34 years, Occ - Agriculture
R/o Abegaon, Taluka - Majalgaon
District - Beed
VERSUS
1. Achutrao s/o Appasaheb Shejul RESPONDENTS
Age - 68 years, Occ - Agriculture
R/o Abegaon, Taluka - Majalgaon
District - Beed
2. Mohan s/o Haribhau Mogal
Age - 43 years, Occ - Agriculture
R/o Kundi, Taluka - Sailu
District - Parbhani
3. Sharda w/o Pralhad Ugle
Age - 28 years, Occ - Household
R/o Chinchgawhan, Taluka - Majalgaon
District - Beed
.......
Mr. Fulchand R. Tandale, Advocate for the petitioners
Mr. B. S. Kudale, Advocate for respondent No.1
.......
[CORAM : SUNIL P. DESHMUKH, J.]
DATE : 29th AUGUST, 2017
{2} wp10166-12
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith and heard finally with
consent of learned advocates for the appearing parties.
2. This petition takes exception to order dated 22 nd October,
2012 on Exhibit-22 in Regular Civil Appeal No. 30 of 2011
whereunder request of present petitioners - appellants to permit
them to lead additional evidence by submitting some documents
on record, has been rejected.
3. Learned advocates for the respective parties are not at
logger heads that the impugned decision is rendered on merits
of the application, yet, learned advocate for the petitioners
submits that while the matter was being addressed to, decision
rendered by the Supreme Court in the case of "Union of India V/s
Ibrahim Uddin and Another" reported in 2013 AIR (SCW) 2750 : 2012 (8)
SCC 148 had not been before the court.
4. Learned advocate for the petitioners adverts to head note
"B" thereof and paragraphs No. 38 and 41. Paragraphs No. 38
and 41 from aforesaid judgment are reproduced hereinbelow for
ready reference, reading, thus-
" 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
{3} wp10166-12
/ 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 ot 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 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 / in
executable 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."
{4} wp10166-12
5. Looking at the background in which decision has been
rendered by the Supreme Court and specially the reasons which
went into making of the observations, it appears to be expedient
in the present matter, such an opportunity be allowed to the
petitioners to have hearing afresh of application Exhibit-22.
6. Learned advocate for respondent No. 1 submits that this
would tantamount to a second inning being allowed over the
same subject matter and would prejudice defence of respondent
No. 1 resisting the application.
7. Apprehension being expressed by learned advocate for
respondent No. 1 that this order may prejudice his defence
appears to be based on friable ground as setting aside impugned
order in present matter for the purpose and for the reasons as
referred to in the decision of the Supreme Court would not wipe
out and destroy defence and resistance to the application as has
been considered.
8. It would be open for respondent No. 1 to take up all the
contentions as were taken resisting the application while hearing
application Exhibit-22.
9. As such, for the reasons contained in the decision of the
{5} wp10166-12
Supreme Court, impugned order dated 22 nd October, 2012 on
Exhibit-22 in Regular Civil Appeal No. 30 of 2011 passed by
District Judge-1, Majalgaon is set aside. Application Exhibit-22 is
restored to its position, to be considered afresh along with
appeal, as referred to by the Supreme Court in the reported
judgment, on its own merits and without prejudice to the
contentions of rival parties. This order would not be an
impediment for the parties concerned to re-address themselves
on application Exhibit-22. All points are kept open.
10. Writ petition as such, stands allowed. Rule is made
absolute in aforesaid terms.
[SUNIL P. DESHMUKH, J.]
drp/wp10166-12
