Himachal Pradesh High Court
Decided On: 07.08.2025 vs Sh. Hari Krishan & Others on 7 August, 2025
Author: Ajay Mohan Goel
Bench: Ajay Mohan Goel
2025:HHC:26857
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMPMO No.541 of 2023
.
Decided on: 07.08.2025
Sh. Ram Saran & another ... Petitioners
Versus
Sh. Hari Krishan & others ... Respondents
Coram
Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1
____________________________________________________ _
For the petitioners : Mr. Sudhir Thakur, Senior Advocate,
with Mr. Karun Negi, Advocate.
For the respondents : Mr. P.S. Goverdhan, Senior Advocate,
r with Mr. Rakesh Thakur, Advocate.
Ajay Mohan Goel, Judge (Oral)
By way of this petition, the petitioners have, inter alia,
prayed for the following reliefs:-
"It is therefore, humbly prayed that the present petition
may kindly be allowed the impugned order dated
25.07.2023 (Annexure P-1) may be quashed and set
aside and CMA No. 295-S/6 of 2022 (Annexure P-2) in
Civil appeal no. 47-S/13 of 2014 may kindly be allowed
in interest of justice and the documents sought to be
placed on record may kindly be ordered to be placed on
record by way of additional evidence in the interest of
justice and fair play.
It is further humbly prayed that in case this Hon'ble Court
comes to the conclusion that the present petition is not
maintainable under article 227 of the Constitution of
India, in that eventuality the present petition may be
Whether reporters of the local papers may be allowed to see the judgment?
2025:HHC:26857
treated as revision petition under section 115 of CPC"
2. The petitioners are aggrieved by the order passed by
.
learned Appellate Court, in terms whereof, an application filed under
Order XLI, Rule 27 of th e Civil Procedure Code stands rejected by
the learned Appellate Court. The appeal is still pending before the
learned Appellate Court.
3. Learned Senior Counsel for the petitioners submitted
that without going into the contents of the impugned order as to
what weighed with the learned Appellate Court while rejecting the
application, the impugned order per se is perverse, for the reason
that the learned Appellate Court while dismissing the application
erred in not appreciating that in terms of the law laid down by
Hon'ble Supreme Court of India such an application could not have
been disposed of during the pendency of the appeal and it ought to
have been considered only at the time of final hearing of the matter,
because an application under Order XLI, Rule 27 of the Civil
Procedure Code is to be considered at the time of hearing of the
appeal on merit, so as to find, whether the documents/evidence
sought to be adduced have any relevance bearing on the issues
involved. Learned Senior Counsel submitted that this is in terms of
the law declared by the Hon'ble Supreme Court of India and he has
referred to the judgments of the Hon'ble Supreme Court in Union of
India Versus Ibrahim Uddin and another, 2012 (8) SCC 148.
2025:HHC:26857
4. On the other hand, learned Senior Counsel for the
petitioners/defendants also again referred to the judgment of
.
Hon'ble Supreme Court in Satish Chand Surana Vs. Raj Kumar
Meshram, Civil Appeal No.7446 of 2021, decided on 06.12.2021, and
submitted that such an application can be taken up for
consideration by the learned Appellate Court at any stage and it is
only if the learned Appellate Court finds substance therein, then it is
kept pending so as to be considered at the stage of final
adjudication.
5. I have heard learned counsel for the parties and have
carefully gone through the order under challenge as well as the
judgments of the Hon'ble Supreme Court.
6. It is not in dispute that an application filed under Order
XLI, Rule 27 of the Civil Procedure Code by the petitioners stood
dismissed by the learned Appellate Court during the pendency of the
appeal. The Hon'ble Supreme Court in Union of India Versus Ibrahim
Uddin and another (supra) has been pleased to hold that an
application filed under Order XLI, Rule 27 of the Civil Procedure
Code is to be considered at the time of hearing of the appeal on
merit so as to find whether the documents/ evidence sought to be
adduced has any relevance/ bearing on the issues involved. The
Hon'ble Supreme Court further held that the admissibility of
additional evidence does not depend upon the relevancy of the issue
2025:HHC:26857
on hand or on the fact, whether the applicant had an opportunity to
adduce such evidence at an earlier stage or not, but depends upon
.
whether or not the learned Appellate Court requires the evidence
sought to be adduced, to enable it to pronounce the judgment or for
any other substantial cause. The true test, therefore, is whether the
learned Appellate Court is able to pronounce the judgment on the
basis of the material present before it without taking into
consideration additional evidence sought to be adduced or not. In
the said judgment the Hon'ble Supreme Court further held that the
application for taking additional evidence on record at any appellate
stage, even if filed during the pendency of the appeal, it 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. The Hon'ble Supreme Court further held that in
case the application for taking additional evidence on record has
been considered and allowed prior to 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, remain in-consequential, in-
executable and is liable to be ignored.
7. In Satish Chand Surana Versus Raj Kumar Meshram
2025:HHC:26857
(supra), Hon'ble Supreme Court has been pleased to hold that if the
appellant makes out a case for allowing the application, the material
.
produced alongwith the application has to be considered at the time
of final disposal of the appeal in accordance with law. Para-9 of the
said judgment is re-produced herein below:-
"(9) It is also necessary to observe here that the
application for permission to file additional evidence
should contain the list of documents giving full particulars
thereof and copies sought to be filed as additional
evidence should be served on the other side. However, the
High Court cannot completely ignore the application filed
by the appellant and pronounce the judgment. If the
appellant makes out a case for allowing the application,
the material produced along with the application has to be
considered at the time of final disposal of the appeal in
accordance with law."
8. Thus, in terms of the judgment of Hon'ble Supreme
Court in Union of India Versus Ibrahim Uddin and another (supra),
an application can only be decided at the stage of hearing of the
final appeal in light of the reasoning spelled out in the said judgment
and in Satish Chand Surana Versus Raj Kumar Meshram (supra),
the Hon'ble Supreme Court has been pleased to hold that the
material produced alongwith an application has to be considered at
the time of final disposal of the appeal in accordance with law.
9. In the considered view of this Court, there is no conflict
2025:HHC:26857
between the said two judgments of the Hon'ble Supreme Court. The
crux of these judgments is that additional evidence intended to be
.
produced can only be taken into consideration at the time of final
disposal of the appeal in accordance with law.
10. That being the legal position, obviously prudence
demands that the application should be taken up for consideration
only at the stage of final disposal of the appeal. If this is not done,
then an order passed thereupon has to be ignored in terms of the
judgment of the Hon'ble Supreme Court in Union of India Versus
Ibrahim Uddin and another (supra), which does not serve any
purpose and rather defeats the purpose of the provisions of Order
XLI, Rule 27 of the Civil Procedure Code. This extremely important
aspect of the matter has been ignored by the learned Court below
while disposing of the application filed by the petitioners under
Order XLI, Rule 27 of the Civil Procedure Code during the pendency
of the appeal itself. Learned Appellate Court ought to have had kept
the application pending and the same should have been taken into
consideration only at the time of final disposal of the appeal in
accordance with law in terms of the judgments of Hon'ble Supreme
Court cited hereinabove.
11. Therefore, this petition is allowed and order dated
25.07.2023 (Annexure P-1), passed by the learned Appellate Court is
set aside and the application filed under Order XLI, Rule 27 of the
2025:HHC:26857
Civil Procedure Code is ordered to be revived with the observation
that the same shall be taken into consideration by the learned
.
Appellate Court at the time of final adjudication of the appeal. It is
clarified that this Court has not made any observation as far as the
merits of the application filed under Order XLI, Rule 27 of the Civil
Procedure Code are concerned.
12. The petition stands disposed of in above terms. Interim
order, if any, stands vacated. Pending miscellaneous application(s), if
any also stand disposed of accordingly.
(Ajay Mohan Goel)
Judge
August 07, 2025
(Rishi)
