Ganesh Prasad vs Hari Naryan
2021 Latest Caselaw 379 MP

                                                                M.P. No.2063/2020

                                       -1-


                 The High Court of Madhya Pradesh

                            M.P.No.2063/2020
                     (GANESH PRASHAD Vs HARI NARAYAN)


Jabalpur, Dated: 01/03/2021
      Shri Surendra Verma, learned counsel for the petitioner.
      Shri A.K. Tiwari, learned counsel for the respondent.

Heard.

By this miscellaneous petition under Article 227 of the Constitution, the petitioner in the pending first appeal has challenged the order of the first appellate Court dated 29.01.2020 whereby the petitioner's application under Order 41 Rule 27 of CPC has been rejected.

Short submission of learned counsel for the petitioner is that the first appellate Court could not have decided the application under Order 41 Rule 27 of CPC separately but it ought to have decided while deciding the appeal finally.

Counsel for the respondent opposed the petition. I have heard learned counsel for the parties. The Supreme Court in the matter of Malyalam Plantations Ltd. Vs. State of Kerala and another reported in AIR 2011 SC 559 has held that it is incumbent on the part of the appellate Court to consider the application under Order 41 Rule 27 of CPC at the time of hearing of the appeal on merits. The Supreme Court in this judgment has held as under:

"11) 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 M.P. No.2063/2020

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. 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."

In the present case, the first appellate Court has decided an application under Order 41 Rule 27 of CPC separately keeping the first appeal pending. Hence, the impugned order of the first appellate Court cannot be sustained.

Having regard to the above judgment of Supreme Court, the impugned order dated 29.01.2020 is set aside and the miscellaneous petition is allowed with a direction to the first appellate Court to decide the application under Order 41 Rule 27 of CPC while finally deciding the first appeal.

It is made clear that this Court has not expressed any opinion on the merits in respect of plea taken in the application under Order 41 Rule 27 of CPC.

C.C. as per rules.

(PRAKASH SHRIVASTAVA) JUDGE Biswal

SHIBA NARAYAN BISWAL 2021.03.01 18:34:25 +05'30'