Madhya Pradesh High Court
Ram Dayal Kachhi Dead Through Lrs ... vs Ravishankar Sarathe Son Of Kunnulal ... on 5 May, 2025
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
NEUTRAL CITATION NO. 2025:MPHC-JBP:20779
1 MP-511-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 5 th OF MAY, 2025
MISC. PETITION No. 511 of 2025
RAM DAYAL KACHHI DEAD THROUGH LRS SANTOSH PATEL
KACHHI
Versus
RAVISHANKAR SARATHE SON OF KUNNULAL SARATHE DEAD
THROUGH LRS AJAY SARATHE AND OTHERS
Appearance:
Shri Paresh Pareek - Advocate for the petitioner.
Shri Dushyant Singh Kaurav - Advocate for respondents 3-4.
ORDER
This misc. petition has been preferred by the petitioner/plaintiff
challenging the order dated 06.12.2024 passed by XIX District Judge,
Jabalpur in regular civil appeal No.35/2019 (4/2019) whereby first appellate
Court before hearing the appeal on merits, has decided/dismissed petitioner's
two applications under Order XLI Rule 27 of the CPC and Section 39 of the
Bharatiya Sakshya Adhiniyam, 2023 (in short 'the BSA').
2 . Learned counsel for the petitioner placing reliance on the decision
of Hon'ble Supreme Court in the case of Union of India vs. Ibrahim Uddin
and Anr., (2012) 8 SCC 148 (Para 49) submits that first appellate court was
not having any jurisdiction to decide the application under Order XLI Rule
27 of the CPC without hearing the civil appeal on merits. He submits that
similarly the application filed under Section 39 of the BSA ought to have
been decided at the time of final hearing after considering the entire material
NEUTRAL CITATION NO. 2025:MPHC-JBP:20779
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available on record as well as in the light of findings recorded by trial court
in paragraph 14 of its judgment dated 30.11.2018. With these submissions he
prays for allowing the misc. petition.
3 . Learned counsel appearing for respondents 3-4/defendants submits
that first appellate court has not committed any illegality in dismissing both
the applications and prays for dismissal of misc. petition.
4. Heard learned counsel for the parties and perused the record.
5 . Para 49 of the judgment passed by Hon'ble Supreme Court in the
case of Union of India (supra), reads as under :-
"49. An application under Order 41 Rule 27 CPC is to be considered at
the time of hearing of appeal on merits so as to find out 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 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. Financial Commr.,
Taxation [(1976) 3 SCC 28 : AIR 1976 SC 1053] .) "
6. As has been held by Hon'ble Supreme Court in the case of Union of
India (supra), the application under Order XLI Rule 27 CPC cannot be
decided without hearing the appeal on merits.
7 . Accordingly the impugned order deciding the application under
Order XLI Rule 27 CPC is not sustainable and is hereby set aside.
8. So far as the question of dismissal of application under Section 39
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of the BSA is concerned, in the present case trial Court while passing its
final judgment has observed in paragraph 14 that because there was no
admitted thumb impression available on record, therefore, the plaintiff could
not examine the thumb impression of Maliram. Although fresh application
under Section 39 of BSA has been filed before first appellate Court, but in
the light of filing of application before trial Court for the same purpose, first
appellate Court ought to have decided the requirement to examine
handwriting expert at the time of final decision of the first appeal.
9. Accordingly, by setting aside the impugned order, it is directed that
first appellate Court shall decide both the applications i.e. under Order XLI
Rule 27 CPC and Section 39 of the BSA at the time of final hearing of the
regular civil appeal pending before it.
10. With the aforesaid, this misc. petition is allowed and disposed off.
11. It is made clear that this Court has not expressed any opinion on
merits and demerits of the case.
12. Misc. application(s), pending if any, shall stand closed.
(DWARKA DHISH BANSAL)
JUDGE
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