Gujarat High Court
Satishbhai Babulal Shah vs Thakor Shakriben Jusaji Chelaji on 23 September, 2025
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C/SCA/6798/2018 ORDER DATED: 23/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6798 of 2018
With
CIVIL APPLICATION (FOR VACATING INTERIM RELIEF) NO. 1 of 2022
In R/SPECIAL CIVIL APPLICATION NO. 6798 of 2018
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SATISHBHAI BABULAL SHAH & ORS.
Versus
THAKOR SHAKRIBEN JUSAJI CHELAJI & ORS.
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Appearance:
MS MEGHA JANI(1028) for the Petitioner(s) No. 1,2,3,4
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Respondent(s) No. 18,19,20,21,7
MR CHINTAN S SONWANE(11686) for the Respondent(s) No. 21.2
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No.
18.1,7.1,7.2,7.3,7.4,7.5
SERVED BY RPAD (N) for the Respondent(s) No. 20.4
MR DARSHAN BHANUBHAI SAKARIYA(13483) for the Respondent(s) No. 2
MR DILIP L KANOJIYA(3691) for the Respondent(s) No. 24
MR MRUGEN K PUROHIT(1224) for the Respondent(s) No. 1
MR. BHAVIK P SHAH(6391) for the Respondent(s) No. 15,17
MS. KRUTI M SHAH(2428) for the Respondent(s) No.
19.1,19.2,19.3,19.4,19.5
NOTICE SERVED BY DS for the Respondent(s) No.
10,11,12,13,14,16,21.1,22,23,25,4,6,8.1,8.2,8.3,9
PRASHANTKUMAR R SHARMA(8591) for the Respondent(s) No. 21.2
SERVED BY AFFIX(N) for the Respondent(s) No. 20.1,20.2,20.3,20.5
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/09/2025
ORAL ORDER
1. Heard learned Advocate Mr. Mit S. Thakkar for learned
Advocate Ms. Megha Jani for the petitioners, learned Senior
Advocate Mr. Sudhir Nanavati with learned Advocate Mrugen
K. Purohit for respondent no. 1, learned Advocate Ms. Kruti
M. Shah for the Respondents No. 19.1,19.2,19.3,19.4,19.5.
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2. The present writ application is filed under Article 227 of
the Constitution of India seeking following reliefs :-
"A) That this Hon'ble Court may be pleased to admit this petition.
B) That this Hon'ble Court may be pleased to allow this petition by
issuing appropriate, writ, order or direction quashing and setting aside
the Order passed by learned 12th Addl. District Judge, District Court,
Ahmedabad (Rural) at Mirzapur in Reg. Civil Appeal No.3 of 2017
dated 3.4.2018 in the interest of justice.
C) Pending admission, hearing and final disposal of this petition,
this Hon'ble Court may be pleased to grant stay as to execution,
implementation and operation of the Judgment and order passed by
learned 12th Addl. District Judge, District Court, Ahmedabad (Rural) at
Mirzapur in Reg. Civil Appeal No.3 of 2017 dated 3.4.2018 in the
interest of justice.
D) Grant such other and further relief (s) as deemed just and
proper by this Hon'ble Court in the interest of justice."
3. Learned Advocate for the petitioners would submit
that the impugned application filed in Regular Civil Appeal
No. 3 of 2017 came to be rejected by the appellate Court,
though the same was filed under Order 41 rule 27 of CPC,
inasmuch as the impugned application 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.
Thakkar would refer and rely upon the following decisions of
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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.
4. Making the above submissions, learned advocate Mr.
Thakkar 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 senior advocate Mr. Nanavati
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appearing for the respective respondent No.1 though unable
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.
Learned senior advocate would place reliance upon
following decision of Hon'ble Apex Court.
(i) Malayalam Plantations Ltd. V/s State of Kerala and
another reported in (2010) 13 SCC 487.
6. Likewise, learned advocate Ms. Shah appearing for some
of the respondents would also contend that there is no merit
in the present writ application as having lost before the
appellate Court, now, petitioners cannot be allowed to say
that matter be remanded back to the appellate Court.
7. Nonetheless, learned advocates for the respondents are
not able to dispute the ratio laid down in cited cases. As
such, they would leave the issue germen in the matter at the
discretion of this Court as regards to remand of the matter
back to the appellate Court. But, they would request that the
impugned application may be heard and decided at the time
of hearing the said appeal by appellate Court in accordance
with law.
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8. Having heard learned advocates for the respective
parties, and so also examined the issue germane in the
impugned application, according to this Court, its squarely
covered by the following decisions of the Hon'ble Apex
Court followed by co-ordinate bench of this Court,
8.1 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)
8.2 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
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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
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)
8.3 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
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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
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)
8.4 In the case of Mukulbhai Rajendra Thakor, Trustees of
Shri Sad Vidya Mandal (supra), wherein co-ordinate bench
of this Court (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
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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
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)
9. 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 no cavil between
the learned advocates for the respective parties that, if the
matter is ordered to be remanded back, then the impugned
application requires to be heard and decided along with the
appeal.
10. Thus, 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.
11. As in the case on hand also, the appellate Court
unmindful of afore-stated position of law, not only heard but
decided the impugned application filed in the aforesaid
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provision of law. To that extent, interference of this Court
requires, as gross error of law committed by the appellate
Court, which requires to be cured.
12. For the forgoing reasons, the impugned order dated
03/04/2018 passed by 12th Additional District Judge, District
Court, Ahmedabad (Rural) at Mirzapur in Regular Civil Appeal
No.3 of 2017 is hereby quashed and set aside.
13. Consequently, the impugned application filed under
Order 41 Rule 27 of CPC in the aforesaid appeal, is restored
back on its file and ordered to be heard and decided along
with the Regular Civil Appeal No. 3 of 2017 in accordance
with law. It goes without saying that impugned application
requires to be decided without being influenced by any of
the observations so made by the appellate Court while
passing the order impugned in the present writ application
and any of orders so far passed by this Court in present writ
application including present one.
14. It is further made clear that this Court has neither gone
into nor examined the merit of the impugned application as
the impugned order is quashed and set aside due to the
aforesaid reason only. So, the appellate Court shall decide
the impugned application afresh, albeit, in accordance with
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law.
15. As the said regular appeal instituted in the year 2017, if
the parties to the appeal extend their co-operation and
support, the appellate Court shall expedite the hearing of
the aforesaid appeal and same be decided as early as
possible. The learned advocates of the parties have informed
this Court that the appeal is presently at the stage of final
hearing, thus, it may be decided preferably on or before 31 st
January, 2026.
16. In view of aforesaid conclusion, the present writ
application is partly allowed to the aforesaid extent. Interim
relief, if any, granted earlier stands vacated forthwith. Civil
application is also disposed of. Rule is made absolute
accordingly.
Direct service is permitted.
(MAULIK J.SHELAT,J)
SALIM/
