Rajasthan High Court
Islamuddin vs Smt Meena Begam And Anr on 25 April, 2022
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.1706/2018
Islamuddin S/o Shri Abdul Salam, aged about 54 years, R/o
Mata Ke Mand Ke Peeche, Mohalla Mahavatan, Naiyo Ka Teeba,
Jaipur, At Present Kirayedar Chand Chhabil Ke Samne, Sarvano
Ka Teeba, Rasta Thakur Geejgarh, Chaukdi Topkhana Hujuri,
Jaipur.
----Petitioner/Appellant/Defendant
Versus
1. Smt. Meena Begam W/o Abdul Latif, aged about 44 years,
R/o Makan No. 1938, Dhabaiji Ka Khurra, Chaukdi
Ramchandra Ji, Jaipur.
2. Faruq Ahmad S/o Sh. Haji Abdul Gani, R/o Makan No.
1938, Dhabaiji Ka Khurra, Chaukdi Ramchandra Ji, Jaipur.
----Respondents/Plaintiffs
For Petitioner(s) : Mr.Hemant Kumar Sharma, Adv.
For Respondent(s) : Mr.R.B. Sharma Ganthola, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
25/04/2022
This writ petition has been filed by the petitioner
challenging the order dated 28.11.2017, whereby, application filed
by the petitioner under Order 41 Rule 27 CPC has been dismissed
by the Court below.
Learned counsel for the petitioner submitted that while
filing the application under Order 41 Rule 27 CPC, the petitioner
had specifically pleaded that in respect of property in dispute,
earlier litigation had taken place between the parties.
Learned counsel submitted that initially the suit was
filed by one Usman Khan against Abdul Salam i.e. father of the
petitioner and said suit was dismissed on 12.10.1990.
(2 of 4) [CW-1706/2018]
Learned counsel submitted that the second suit was
filed by one Allarakhi against Abdul Salam i.e. father of the
petitioner somewhere in 1996 and said suit was also dismissed on
08.04.2002.
Learned counsel submitted that the plaintiff in the
present case is subsequent purchaser of the property, i.e. Smt.
Meena Begum, from earlier owner of the property-Allarakhi and
she has filed the present suit against the present petitioner.
Learned counsel submitted that during pendency of the
appeal, the appellant-petitioner sought permission to place on
record the additional evidence and as such, sufficient reason was
also given in the application for placing the document/additional
evidence on record.
Learned counsel submitted that the Court below has
rejected the application only on the ground that appeal was
pending before the Appellate Court since 2009 and application for
bringing additional documents on record was filed somewhere in
the year 2017.
Learned counsel submitted that sufficient reason was
assigned in the application for not producing the additional
evidence and as such, the Court below ought to have granted an
opportunity to the petitioner to produce additional evidence on
record.
Per contra, learned counsel for the respondent Mr.R.B.
Sharma submits that the Court below has not committed any
illegality in rejecting the application filed by the petitioner by
passing impugned order.
Learned counsel for the respondent submitted that the
previous litigation or any order/judgment decree passed by the
(3 of 4) [CW-1706/2018]
Court below does not have any relevance in respect of controversy
which is raised in the suit filed by the plaintiff-respondent.
Learned counsel further submitted that the present suit
has been filed by the plaintiff-respondent on the basis of
registered sale deed which has been executed between the parties
and non-petitioner has every right to seek vacation of the
petitioner from the suit premises.
Learned counsel Mr.R.B. Sharma submitted that, the so
called explanation given in filing the application after lapse of eight
years, was not just and proper, justification for producing the
documents, at belated stage and as such, this Court under Article
227 of the Constitution of India may not interfere in the present
matter.
Learned counsel submitted that the petitioner-appellant
intends to delay the entire proceedings and as such, decree which
was passed in favour of the non-petitioner way back on
22.09.2009, has not been given any effect due to pendency of the
appeal.
I have heard learned counsel for the parties.
This Court finds that the application filed by the
petitioner under Order 41 Rule 27 CPC, had given the details with
respect to earlier orders/judgment, passed in respect of the suit
property.
This Court further finds that relevance of the document
was not to be seen at the time of allowing/dismissing the
application filed under Order 41 Rule 27 CPC. The Appellate Court
was required to consider that the document/additional evidence
which is produced at the Appellate stage has any connection with
the dispute of the property in question or not.
(4 of 4) [CW-1706/2018]
This Court finds that the reasonable opportunity should
be afforded to a litigant to produce the relevant
document/additional evidence, at the Appellate stage as well.
The submission of learned counsel for the respondent
that there is every likelihood that by allowing the application filed
by the petitioner, the appeal filed by the appellant-petitioner will
be delayed and respondent will not be able to get the judgment
and decree executed, suffice it to say by this Court that the
parties who are appearing before the Appellate Court should be
given adequate opportunity to defend themselves.
Consequently, this Court sets aside the impugned order
dated 28.11.2017 passed by the Court below and accordingly, the
present writ petition stands allowed.
This Court further directs that the petitioner would be
granted only one opportunity to produce the additional evidence
by paying, a sum of Rs.10,000/- towards cost, to the respondent-
plaintiff on the next date of hearing.
The Appellate Court after affording only one opportunity
to the petitioner, would also grant one opportunity to the non-
petitioner-plaintiff to lead any evidence in rebuttal and the
Appellate Court after affording the aforesaid opportunities to both
the parties, should make an endeavour to dispose of the appeal in
expeditious manner.
(ASHOK KUMAR GAUR), J
Himanshu Soni/112
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