Gujarat High Court
Decd. Patel Bababhai Govabhai Through ... vs Shardaben Wd/O. Patel Baldevbhai ... on 22 July, 2025
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C/SCA/9852/2025 ORDER DATED: 22/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9852 of 2025
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DECD. PATEL BABABHAI GOVABHAI THROUGH HIS LHS & ORS.
Versus
SHARDABEN WD/O. PATEL BALDEVBHAI GOVABHAI & ORS.
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Appearance:
MR DAKSHESH MEHTA(2430) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.5.1,2,2.1,2.2,2.3,2.4,2.5
MR. RUSHANG D MEHTA(6989) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.5.1,2,2.1,2.2,2.3,2.4,2.5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 22/07/2025
ORAL ORDER
1. Heard learned advocate Mr.Rushang D. Mehta for the
petitioners.
2. The present writ application is filed under Article 227 of
the Constitution of India seeking the following relief:-
"A. Your Lordships may be pleased to admit and allow this petition;
B. Your Lordships may be pleased to issue a writ of certiorari or any
other appropriate writ, order or direction for quashing and setting
aside the order dated 28.03.2025 passed in Regular Civil Appeal
No.48/2023 passed by the Ld. Third Additional District Judge,
Mehsana below Exh.16 more particularly, produced at Annexure-A
to this petition;
C. Pending admission, hearing and final disposal of present
petition, Your Lordships may be pleased to stay the execution,
implementation and operation of the order dated 28.03.2025
passed in Regular Civil Appeal No.48/2023 passed by the Ld. Third
Additional District Judge, Mehsana below Exh.16 more particularly,
produced at Annexure-A to this petition;
D. Pending admission, hearing and final disposal of this petition, be
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pleased to stay the further proceedings of Regular Civil Appeal
No.48/2023 pending before the Ld. Third Additional District Judge,
Mehsana;
E. Be pleased to grant any other relief/s as may deem fit proper, in
the interest of justice."
3. Learned advocate Mr.Mehta would submit that petitioners
herein are original appellants of Regular Civil Appeal No.48 of
2023, wherein, they have filed an application under Order 41
Rule 37 of Civil Procedure Code, 1908 (hereinafter referred to
"CPC"), wherein the Appellate Court vide its order dated 20 th
March, 2025 observed an order that such impugned application
will be heard along with main appeal.
3.1. According to learned advocate Mr.Mehta, impugned
application filed under Order 41 Rule 27 of CPC ought to have
been examined first on its merits before deciding the appeal
and thereby, the Appellate Court has committed a serious error
of law.
3.2. Learned advocate Mr.Mehta would further submit that
whenever such an application filed under Order 41 Rule 27 of
CPC in Regular appeal, it would be incumbent upon the
Appellate Court to decide such application first, thereby,
appellant may aware about further proceeding to be
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undertaken in the appeal.
3.3. So, learned advocate Mr.Mehta would request that this
Court to allow the present writ application.
4. The issue germane in the present writ application is
squarely covered by the decision of Hon'ble Supreme Court in
the case of Union of India vs. Ibrahim Uddin and Anr.reported
in 2012 (8) SCC 148, wherein held thus:-
"52.Thus, from the above, it is crystal clear that an
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 the 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, the 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."
(emphasis supplied)
5. It is now well settled legal position of law as propounded
by the Hon'ble Supreme Court in Ibrahim Uddin (supra) that
whenever, such application filed under Order 41 Rule 27 of
CPC of in Regular Civil Appeal, the same is required to be
heard and adjudicated along with the appeal itself and it
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cannot be decided prior to decide the appeal itself.
6. As the contention raised by the learned advocate
Mr.Mehta is already decided in the aforesaid decision, nothing
further requires to be done in the matter.
7. At this stage, learned advocate Mr.Mehta requests this
Court that Appellate Court may be advised to decide the
appeal filed by the petitioners at the earliest.
8. It is always open for the petitioners/appellants of Regular
Civil Appeal No.48 of 2023 pending before District Court,
Mahesana to take up the appeal for its early hearing and it
appears that some of the appellants may be senior citizen, if
such a request may be made, the Appellate Court may consider
such request sympathetically.
9. In view of the aforesaid, I do not find any merits in the
present writ application, which is required to be rejected,
which is hereby REJECTED. No order as to costs.
(MAULIK J.SHELAT,J)
MOHD MONIS
