Gujarat High Court
Vasantlal Danmal Agrawal vs Kanchanben Daughter Of Nathubhai ... on 15 September, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5320 of 2021
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2025
In R/SPECIAL CIVIL APPLICATION NO. 5320 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 5465 of 2021
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 5465 of 2021
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VASANTLAL DANMAL AGRAWAL & ANR.
Versus
KANCHANBEN DAUGHTER OF NATHUBHAI NAROTTAMBHAI & ANR.
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Appearance:
MR. AADIT R SANJANWALA(9918) for the Petitioner(s) No. 1,2
MR PY DIVYESHVAR(2482) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 15/09/2025
ORAL ORDER
1. Heard learned advocate Mr. Aadit R. Sanjanwala for the
petitioners and learned advocate Mr. P.Y. Divyeshvar for
respondent No.1.
2. The present writ applications are filed under Article 227
of the Constitution of India seeking following reliefs :-
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SPECIAL CIVIL APPLICATION NO. 5320 of 2021
(a) That the Hon'ble Court be pleased to quash and set aside order
dated 11/02/2021 passed by the 13th Additional Sessions Judge,
Surat in Regular Civil Appeal No. 95 of 2017 and further be pleased to
grant the reliefs prayed for in the petitioner's application below Exhibit
39 (Annexure A).
(b) Pending the hearing and final disposal of this petition, the
Hon'ble court be pleased to stay further proceedings in Regular Civil
Appeal No. 95 of 2017 pending before the 13th Additional Sessions
Judge, Surat;
(c) Such other and further reliefs that the Hon'ble court deems fit in
the interest of justice
SPECIAL CIVIL APPLICATION NO. 5465 of 2021
(a) That the Hon'ble Court be pleased to quash and set aside order
dated 11/02/2021 passed by the 13th Additional Sessions Judge, Surat
in Regular Civil Appeal No. 91 of 2017 and further be pleased to grant
the reliefs prayed for in the petitioner's application below Exhibit 39
(Annexure A).
(b) Pending the hearing and final disposal of this petition, the
Hon'ble court be pleased to stay further proceedings in Regular Civil
Appeal No. 91 of 2017 pending before the 13th Additional Sessions
Judge, Surat;
(c) Such other and further reliefs that the Hon'ble court deems fit in
the interest of justice."
3. At the outset, learned advocate Mr. Aadit Sanjanwala
for the petitioners would submit that the impugned
application filed below Exh. 39 in Regular Civil Appeal No. 91
& 95 of 2017 respectively came to be rejected by the
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appellate Court, though the same were filed under Order 41
rule 27 of CPC, inasmuch as the impugned applications ought
to have been heard and decided by the appellate Court at
the time of final hearing of the said Regular Civil Appeal.
3.1 In support of his argument, learned advocate Mr.
Sanjanwala would refer and rely upon the following
decisions of the Hon'ble Apex Court as well as this Court
wherein a similar factual situation, where application under
Order 41 rule 27 of CPC came to be rejected by the appellate
Court, and having challenged such order either before this
Court or before the Hon'ble Apex Court as the case may be,
the view taken by the Court that such application requires to
be head and decided along with the appeal.
(i) Union of India Vs. Ibrahim Uddin and another reported
in (2012) 8 SCC 148.
(ii) State of Rajasthan Vs. T.N. Sahani reported in 2000(0)
AIJEL-SC 29606 : (2001) 10 SCC 619.
(iii) Mukulbhai Rajendra Thakor, Trustees of Shri Sad
Vidya Mandal Vs. Upendrabhai Anupam Joshi reported in
2018(0) AIJEL-HC-239686 : 2019(0) AIR (Guj.) 42.
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4. Making the above submissions, learned advocate Mr.
Sanjanwala would request this Court to remand the matter
back to the appellate Court, with a direction to decide the
impugned application so filed under Order 41 Rule 27 of CPC
alongwith the appeal.
5. Per contra, learned advocate Mr. P. Y. Divyeshvar for
the respondent No.1 is enable to dispute the ratio laid down
by the Hon'ble Apex Court in the cited decisions but would
contend that there is no merit in the application, inasmcuh as
ingredients of Order 41 rule 27 of CPC was not made in the
impugned application. Nonetheless, learned advocate for
the respondent would leave it to the discretion of this Court
in regards to remand of the matter back to the appellate
Court, thereby the impugned applications may be decided at
the time of hearing the said appeal. He would place reliance
upon following decision in support of his argument.
(i) Malayalam Plantations Ltd. V/s State of Kerala and
another reported in (2010) 13 SCC 487.
6. Having heard learned advocates for the respective
parties, and so also issue germane in the impugned
applications, according to this Court, its squarely covered by
the following decisions of the Hon'ble Apex Court followed
by this Court,
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6.1 In the case of (i) Ibrahim Uddin (supra), wherein held
thus :-
"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."
(emphasis supplied)
6.2 In the case of Malayalam Plantations (supra), wherein
held thus :-
"16. 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 time of
hearing 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. It is trite to observe that under Order 41, Rule 27,
additional evidence could be adduced in one of the three situations,
namely, (a) whether the trial Court has illegally refused the evidence
although it ought to have been permitted; (b) whether the evidence
sought to be adduced by the party was not available to it despite the
exercise of due diligence; (c) whether additional evidence was
necessary in order to enable the Appellate Court to pronounce the
judgment or any other substantial cause of similar nature.
17. It is equally well-settled that additional evidence cannot be
permitted to be adduced so as to fill in the lacunae or to patch up the
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weak points in the case. Adducing additional evidence is in the interest
of justice. Evidence relating to subsequent happening or events which
are relevant for disposal of the appeal, however, it is not open to any
party, at the stage of appeal, to make fresh allegations and call upon
the other side to admit or deny the same. Any such attempt is contrary
to the requirements of Order 41 Rule 27 of CPC. Additional evidence
cannot be permitted at the Appellate stage in order to enable other
party to remove certain lacunae present in that case."
(emphasis supplied)
6.3 In the case of T.N. Sahani (supra), wherein held thus :-
"3. The application filed under Order 6, Rule 17 came to be dismissed.
Taking that aspect into consideration, the High Court dismissed that
application under Order 41, Rule 27 also as in its view, where the
amendment application of the appellant seeking amendment of the
Memorandum of Appeal in respect of the documents sought to be
placed on records was disallowed, "how can the said documents be
required for pronouncing the judgment or for any other substantial
cause".
4. It may be pointed out that this Court as long back as in 1963 in
K. Venkataramiah v. Seetharama Reddy, AIR 1963 Supreme Court
1526, pointed out the scope of unamended provision of Order 41, Rule
27(c) that though there might well be cases where even though the
Court found that it was able to pronounce the judgment on the state of
the record as it was, and so, it could not be required additional
evidence to enable it to pronounce the judgment, it still considered that
in the interest of justice something which remained obscure should be
filled up so that it could pronounce its judgment in a more satisfactory
manner. This is entirely for the Court to consider at the time of hearing
of the appeal on merits whether looking into the documents which are
sought to be filed as additional evidence, need be looked into to
pronounce its judgment in a more satisfactory manner. If that be so, it
is always open to be Court to look into the documents and for that
purpose amended provision of Order 41, Rule 27(b), C.P.C. can be
invoked. So the application under Order 41, Rule 27 should have been
decided along with the appeal. Had the court found the documents
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necessary to pronounce the judgment in the appeal in a more
satisfactory manner it would have allowed the same; if not, the same
would have been dismissed at that stage. But taking a view on the
application before hearing of the appeal, in our view would
be inappropriate. Further, the reason given for the dismissal of the
applications is untenable. The order under challenge cannot, therefore,
be sustained. it is accordingly set aside. The application is restored to
its file. The High Court will not consider the appeal and the application
and decide the matter afresh in accordance with law."
(emphasis supplied)
6.4 In the case of Mukulbhai Rajendra Thakor, Trustees of
Shri Sad Vidya Mandal (supra), wherein (Hon'ble Mr. Justice
N.V. Anjaria, his lordship then was), observed and held thus:-
"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 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 learned Principal District Judge,
Bharuch, ought not to have rejected the applications. Therefore, in
view of law laid down in Malyalam Plantations Ltd. and in Ibrahim
Uddin , learned Additional District Judge, Bharuch, committed an error
in rejecting the application Exh.29 of the petitioners.
6. The application below Exh.29 was under Order XLI Rule 27 for
additional evidence filed in the appeal proceedings and therefore was
required to be considered at the time of deciding the appeal. It is,
therefore, for the court below to consider and take decision one way or
other as to the applicability of the same which shall be at the time of
deciding the appeal. The appeal shall be decided with reference to the
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conclusion which the court below may arrive at in respect of Exh.29
application. The court below shall take a decision as per the mandate
of the provisions of Order XLI Rule 27, CPC."
(emphasis supplied)
7. In light of aforesaid, as held by the Hon'ble Apex Court
as well as followed by this Court in the above referred
decisions, and so also, there would remain consensus ad-idem
between the learned advocates for the respective parties
that, if the matter is order to be remanded back, then the
impugned application requires to be heard and decided
along with the appeal. It would be gainsaid that whenever
an application filed by parties to the appeal under Order XLI
Rule 27 of CPC requesting the appellate Court to allow such
party to submit additional evidence, such application needs
and requires to be heard alongwith appeal but not prior
thereto.
8. As in the case on hand, the appellate Court unmindful
of afore-stated position of law heard and decided the
impugned applications filed in the aforesaid provision of law.
To that extent, interference of this Court requires, so gross
error of law committed by the appellate Court can be cured.
9. For the forgoing reasons, the impugned orders dated
11/02/2021 passed by the 13th Additional Sessions Judge,
Surat below Exh. 39 in Regular Civil Appeal Nos. 95 of 2017
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and in Regular Civil Appeal No. 91 of 2017 respectively are
hereby quashed and set aside. Consequently, the impugned
applications filed below Exh. 39 in the aforesaid appeals, is
restored back on its file and order to be heard and decided
along with the Regular Civil Appeal Nos. 95 & 91 of 2017 in
accordance with law, without being influenced by any of the
observations so made by the appellate Court while passing
the orders impugned in the present writ applications and by
this Court in its any order including present one.
10. It is further made clear that this Court has neither gone
into nor examined the merit of the impugned applications as
the impugned orders are quashed and set aside due to the
aforesaid reasons. So, the appellate Court shall decide it
afresh, albeit in accordance with law.
11. As the said regular appeal instituted in the year 2017, if
the parties to the appeals extend their co-operation and
support, the appellate Court shall expedite the hearing of
the aforesaid appeals and same be decided as early as
possible. The learned advocates of the parties have informed
this Court that the appeals are presently at the stage of final
hearing, thus, it may be decided preferably on or before 31st
January, 2026.
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12. In view of aforesaid conclusion, the present writ
applications are partly allowed to the aforesaid extent.
Interim relief, if any, granted earlier stands vacated
forthwith. Civil applications are also disposed of accordingly.
Rule is made absolute.
Direct service is permitted.
(MAULIK J.SHELAT,J)
SALIM/
