Administrator And Trustee Of ... vs Naniyabhai Badharbhai Vaghri
2023 Latest Caselaw 4405 Guj

      C/SCA/9690/2012                                  ORDER DATED: 13/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 9690 of 2012

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       ADMINISTRATOR AND TRUSTEE OF DABHOIYAWAD PANCH
                          KABRASTAN
                            Versus
            NANIYABHAI BADHARBHAI VAGHRI & 3 other(s)
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Appearance:
MR KASHYAP R JOSHI(2133) for the Petitioner(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 2,3
MR DHAVAL D VYAS(3225) for the Respondent(s) No. 1
MR MEHUL SHARAD SHAH(773) for the Respondent(s) No. 4
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 CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
                  Date : 13/06/2023
                   ORAL ORDER

1. This petition, under Article 227 of the Constitution of

India, is directed against the order dated 11.05.2022 passed

below Exh.20 in Regular Civil Appeal No.29 of 2011, by which

the learned District Court concerned finally decided the

application for production of additional evidence and the same is

rejected on merits.

2. Mr.Joshi, learned counsel appearing for and on behalf of

the petitioner, submitted that the application filed under Order

41 Rule 27 in an appeal, shall require to be considered at the

time of hearing of 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. In support of his

C/SCA/9690/2012 ORDER DATED: 13/06/2023

submissions, reliance has been placed on the case of Mukulbhai

Rajendra Thakor, Trustees of Shri Sad Vidya Mandal Vs.

Upendrabhai Anupam Joshi (AIR 2019 Guj. 42).

3. Having heard learned counsel for the respective parties and

on perusal of the order, it appears that the application Exh.20

under Order 41 Rule 27 for production of additional evidence

was tendered by the petitioner herein. The Appellate Court, after

hearing the parties, rejected it on merits. The question is the

application for production of additional evidence made at the

appellate stage required to be kept pending till the hearing of the

appeal or not. After referring the judgments of the Apex Court

i.e. (i) Arjunsingh Vs. Kartarsingh, (AIR 1951 Supreme

Court); (ii) Union of India Vs. Ibrahim Uddin (2012 (8) SCC

148); the Single Judge of this Court in the case of Mukulbhai

Rajendra Thakor (supra), held that 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 final stage of the hearing of

the appeal on merits.

4. The present case is fully covered by the order of the Single

Judge of this Court. Thus, therefore, without entering into merits

of the case, the impugned order dated 11.05.2022 passed below

Exh.20 in Regular Civil Appeal No.29 of 2011 is hereby set aside.

C/SCA/9690/2012 ORDER DATED: 13/06/2023

The matter is remanded back to the Trial Court. The application

Exh.20 to be heard, at the time of final stage of the hearing of

the appeal and the learned Trial Court shall decide the same on

its own merits.

5. With the aforesaid observation, present petition stands

allowed accordingly. Rule is made absolute accordingly.

6. This Court has not gone into the merits of the case.

(ILESH J. VORA,J) Rakesh