Gujarat High Court

Shri Satyanarayan Bhagvan Mandir Trust vs Decd. Bhaiya Jagdishbhai Somabhai ... on 14 October, 2025

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                           C/SCA/10411/2021                                      ORDER DATED: 14/10/2025

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                                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                   R/SPECIAL CIVIL APPLICATION NO. 10411 of 2021

                                                        With
                                     CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
                                  In R/SPECIAL CIVIL APPLICATION NO. 10411 of 2021
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                               SHRI SATYANARAYAN BHAGVAN MANDIR TRUST & ANR.
                                                                Versus
                           DECD. BHAIYA JAGDISHBHAI SOMABHAI THROUGH LHS & ORS.
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                     Appearance:
                     MR NK MAJMUDAR(430) for the Petitioner(s) No. 1,2
                     MR RR VAKIL(964) for the Respondent(s) No. 1.1,1.2,1.3
                     ==========================================================

                        CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT

                                                         Date : 14/10/2025

                                                           ORAL ORDER

1. Heard learned Advocate Mr. N. K. Majmudar for the

petitioners and learned Advocate Mr. R. R. Vakil for the

respondents.

2. Rule returnable forthwith. Learned Advocate Mr. R. R. Vakil

waives service of notice of rule on behalf of the respondents.

3. The present writ application is filed under Article 227 of the

Constitution of India, seeking the following relief:

"A) Your Lordship be pleased to admit this petition;

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B) Your Lordship be pleased to quash and set aside order dated 25.03.2021 passed in Regular. Civil Appeal No. 29 of 2016 passed below Exh-20, passed by the Ld.3rd Additional District Judge Kheda at Nadiad by which the application preferred under Or.41, R.27 of CPC,1908 i.e. seeking production of additional evidence at appellate stage came to be rejected.

C) Your Lordship be pleased be pass interim order and be pleased to stay the further proceedings in connection Regular. Civil Appeal No. 29 of 2016 pending before Ld.3rd Additional District Judge Kheda at Nadiad till final disposal of this petition.

D) Your Lordship be pleased to allow the pass such orders as thought fit in the interest of justice."

4. At the outset, learned Advocate Mr. Majmudar states that

impugned application filed under Order 41, Rule 27 of the

Code of Civil Procedure, 1908, came to be rejected by the

appellate court, which could not have been done so, inasmuch

as, as per the settled legal position of law, appellate court

requires to hear and decide such application along with the

appeal.

4.1. To buttress his argument, learned Advocate Mr. Majmudar

would rely upon the decision of Co-ordinate Bench of this

Court:

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(i) Mukulbhai Rajendra Thakor, Trustees of Shri Sad Vidya

Mandal V/s. Upendrabhai Anupam Joshi reported in 2018

SCC OnLine Guj 4847.

4.2. Making the above submissions, learned Advocate Mr.

Majmudar would request this Court to allow the present writ

application.

5. Per contra, learned Advocate Mr. Vakil would submit that

once the appellate court has already decided the impugned

application on merit, whereby, it ultimately held that the

impugned application would not fall within the scope and

ambit of Order 41, Rule 27 of CPC, this Court should not

interfere with the impugned order.

5.1. At the same time, learned Advocate Mr. Vakil would request

this Court that if this Court ultimately accept the prayer made

by the petitioner herein, the matter may be remanded back to

the appellate court and the impugned application may be heard

and decided along with the appeal, which is already listed for

final hearing before the appellate court.

6. Having heard learned Advocates appearing for the respective

parties, the issue germane in the present writ application is

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squarely covered by the decision of the Honourable Supreme

Court of India in the case of Union of India V/s. Ibrahim Uddin

and another reported in 2012 (8) SCC 148, which is considered

by Coordinate Bench of this Court in the case of Mukulbhai

Rajendra Thakor (supra) (his Lordship Mr. Justice N. V.

Anjaria as he then was), wherein it held thus:

"5. What was held by the Supreme Court in Malayamal Plantations Ltd. ((2010) 13 SCC 487 :

AIR 2011 SC 559) (supra) was reaffirmed. In Union of India v. Ibrahim Uddin, ((2012) 8 SCC 148 : (2013 AIR SCW 2752)), the Supreme Court with elaboration considered the scope and applicability of provisions of Order XLI, Rule

27. In that it also considered the aspect as to at what stage the application under Order XLI, Rule 27 could be considered especially at the appellate stage. The relevant paragraphs from the said are reproduced hereinunder,

"Stage of Consideration:

49. An application under Order XLI, Rule 27 of the Code of civil Procedure 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

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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, 1951 SCC 178 : AIR 1951 SC 193; and Natha Singh v. The Financial Commissioner, Taxation, Punjab, (1976) 3 SCC 28 : AIR 1976 SC 1053).

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

"The provisions of S. 107 as elucidated by 0.41, 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 be fore 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 me 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 bearing on a main issue in the case..." (Emphasis added) (See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 PC 128)

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51. In Arjan Singh v. Kartar Singh, (1951 SCC 178 : AIR 1951 SC 193) (supra), this Court held:

"..........If the additional evidence was al lowed to be adduced contrary to the principles governing me 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............. 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 evi dence 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 me time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion mat 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."

5.1. Thus, it is clear from the above pronouncements of the Apex Court that the application for taking additional evidence when made at the appellate stage, it is to be considered at the stage after appreciation of the evidence on record. In another words, it is

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to be kept pending till the hearing of the appeal so that the appellate court could consider at the time of deciding appeal as to whether the additional evidence sought to be produced are necessary to be considered and are relevant. The discretion to allow or reject the additional evidence could be judicially exercised only at the stage of finally considering the appeal. In view of the above position clearly emerging from Ibrahim Uddin, (2013 AIR SCW 2752) (supra) learned Principal District Judge, Bharuch, ought not to have rejected the applications. Therefore, in view of law laid down in Malyalam Plantations Ltd. (supra) and in Ibrahim Uddin (supra), learned Additional District Judge, Bharuch, committed an error in rejecting the application Exh. 29 of the petitioners."

(emphasis supplied)

7. No other and further submissions are made.

8. Thus, in view of the aforesaid, nothing further requires to be

looked into by this Court in the present case, inasmuch as the

impugned order passed by the appellate court, whereby, it

rejected the impugned application filed under Order 41, Rule

27 of CPC, requires to be quashed and set aside and the matter

requires to be remanded back to the appellate court to decide

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afresh the impugned application filed under Order 41, Rule 27