Bhagwandas Jesaram Tanwani vs Sunil Jamnadas Bajaj
2023 Latest Caselaw 6146 Guj

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     C/SCA/7962/2023                                       ORDER DATED: 22/08/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
              R/SPECIAL CIVIL APPLICATION NO. 7962 of 2023
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                       BHAGWANDAS JESARAM TANWANI
                                   Versus
                           SUNIL JAMNADAS BAJAJ
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Appearance:
ROHAN A SHAH(7497) for the Petitioner(s) No. 1
MR DHRUV K DAVE(6928) for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

                                Date : 22/08/2023

                                  ORAL ORDER

Order passed below Exhibit-13 in Regular Civil Appeal No.136 of 2020 dated 28/02/2023 by the learned 7 th Additional District Judge, Vadodara is sought to be challenged in this petition.

2. Heard learned Advocates appearing for the respective parties.

3. Learned Advocates appearing for the respective parties having argued to some extent agreed that, application Exh.13 may be decided in view of the finding and observations made in the case of Union of Indis vs. Ibrahim Uddin & Anr., (2012) 8 SCC 148 wherein after referring to various pronouncements on the subject matter, the Hon'ble Apex Court has held as under:

"48. 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 respect of the issues involved in the case and the circumstances under which such an

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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 :

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 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).

50. In Parsotim Thakur & Ors. v. Lal Mohar Thakur & Ors., AIR 1931 PC 143, it was held:

"The provisions of S.107 as elucidated by O.41, R.27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under R.27, Cl.(1) (b) it is only where the appellate Court "requires" it (i.e. finds it needful). ...... The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent", it may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by R. 27(2) to record its reasons for so doing, and under R.29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important

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bearing on a main issue in the case..." (Emphasis added) (See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 P.C. 128)

51. In Arjan Singh v. Kartar Singh & Ors. (supra), this Court held:

"7..........If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent

8....... The order allowing the appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment"

(Emphasis added)

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 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.

53. 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. Thus, considering the ratio emerging from the above decision, the present petition deserves to be allowed and is accordingly allowed. Order passed below Exhibit-13 in Regular Civil Appeal No.136 of 2020 dated 28/02/2023 by the learned 7th Additional District Judge, Vadodara is quashed and set aside. The learned Court shall hear and decide the application Exhibit-

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13 at the stage of final hearing of the appeal strictly in accordance with law uninfluenced by the disposal of the present petition. It is expected that the learned Court shall hear and decide the appeal within a period of one year from the date of the receipt of the writ of this order.

(J. C. DOSHI,J) sompura