Jasbir Singh vs Anup Kaur
2022 Latest Caselaw 2829 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 17366/2018

1. Jasbir Singh S/o Late Sardan Madan Singh, Aged About 60 Years, By Caste Sikh, R/o 5, Sikh Colony, Udaipur.

2. Manmeet Singh S/o Jasbir Singh,, Aged About 29 Years, By Caste Sikh, R/o 5, Sikh Colony, Udaipur.

----Petitioners Versus

1. Anup Kaur, By Caste Sikh, R/o House No.5, Sikh Colony, Udaipur.

2. Urinderpal Singh S/o Madan Singh,, By Caste Jat Sikh, R/ o House No.5, Sikh Colony, Udaipur (Raj.).

----Respondents Connected With S.B. Civil Writ Petition No. 17384/2018

1. Jasbir Singh S/o Late Sardan Madan Singh, Aged About 60 Years, By Caste Sikh, R/o 5, Sikh Colony, Udaipur.

2. Manmeet Singh S/o Jasbir Singh,, Aged About 29 Years, By Caste Sikh, R/o 5, Sikh Colony, Udaipur.

----Petitioners Versus

1. Anup Kaur, By Caste Sikh, R/o House No.5, Sikh Colony, Udaipur (Raj.).

2. Urinderpal Singh S/o Madan Singh,, By Caste Sikh, R/o House No.5, Sikh Colony, Udaipur (Raj.).

----Respondents

For Petitioner(s) : Mr. Suresh Shrimali. For Respondent(s) : Mr. Prashant Tatia.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

21/02/2022

(2 of 5) [CW-17366/2018]

In wake of instant surge in COVID-19 cases and spread of its

highly infectious Omicron variant, abundant caution is being

maintained, while hearing the matters in the Court, for the safety

of all concerned.

The petitioners have preferred these writ petitions claiming

the following relief:-

"It is, therefore, most respectfully prayed on behalf of the petitioner that the writ petition may kindly be allowed with costs throughout and the impugned order dated 11.09.2018 (Annex.8) passed by the Additional District Judge, No.3, Udaipur, in Civil First Appeal No.3/2015 may kindly be quashed and set aside and the applications filed by the petitioners under Order 6 Rule 17 CPC and under Order 41 Rule 27 CPC may kindly be allowed. "

The petitioners have preferred these writ petitions

challenging the order passed by the learned court below on

15.09.2017, whereby his two applications under Order 41 Rule 27

of the CPC and Order 6 Rule 17 of the CPC in both the petitions

have been dismissed.

The common facts of the two writ petitions are that the

defendant-petitioners filed a first appeal against the judgment and

decree dated 19.01.2015, which was of permanent and mandatory

injunction in favour of the plaintiff-respondents and during the

pendency of the appeal, the said applications were filed. The

present suit was filed by the respondents seeking permanent and

mandatory injunction against the present petitioners and the same

was decided in favour of the respondents, to which, the aforesaid

appeal was preferred. It is relevant to note here that the

petitioners had filed a suit for partition, in which, the respondent

had preferred a counter claim and the learned court below was

(3 of 5) [CW-17366/2018]

pleased to dismiss the suit and allowed the counter claim, to

which, an appeal was preferred and is pending before this Hon'ble

Court as First Appeal No.283/2004.

Learned counsel for the petitioners has relied upon the

precedent law laid down by the Hon'ble Apex Court in the matter

of Union of India Vs. Ibrahim Uddin & Anr. reported in 2012

DNJ (SC) 742, relevant portion of which is reproduced

hereunder:-

"Stage of Consideration :

38. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find 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 & Ors., AIR 1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053).

41. 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

(4 of 5) [CW-17366/2018]

or not, remains inconsequential/inexecutable and is liable to be ignored."

Learned counsel for the petitioners submits that the

application under Order 41 Rule 27 CPC has to be decided at the

final stage of the appeal and ought not to be dismissed

preliminarily. Learned counsel further submits that the bare

comparison of the signatures of Smt. Anup Kaur, which are on

record, the anomaly created by the respondents is writ large, and

thus, the learned court below has failed to appreciate this or in

otherwise his application under Order 41 Rule 27 CPC should have

been considered at the time of trial after seeing the merits of the

appeal and Order 6 Rule 17 CPC, which was for the corresponding

amendment, also ought to have been accepted accordingly at the

final stage.

Learned counsel for the respondents submits that the

judgment of Ibrahim Uddin (supra) is not applicable in the present

case as in that case the application under Order 41 Rule 27 CPC

was allowed and the Hon'ble Supreme Court of the view that if at

all it was to be allowed then it should have been along with the

final examination of the appeal.

Learned counsel for the respondents further submits that the

documents sought to be taken on record were in the knowledge of

the petitioners and there is no explanation why there is a gross

delay in bringing them documents on record.

Learned counsel for the respondents also submits that this is

a suit for injunction, and thus, any title documents would be of no

consequence.

This Court, after hearing learned counsel for the parties and

perusing the material available on record, observes that the

(5 of 5) [CW-17366/2018]

present suit against which the appeal is pending was for

permanent injunction and not for deciding the title of the property

in question.

This Court also finds that Order 41 Rule 27 CPC dismissal

order has been passed as a reasoned order as the learned Court

below has observed that the bringing of documents would be of no

consequence to the dispute itself. It is also noted that the

documents were well within the knowledge of the respondents at

much earlier stage, and thus, bringing in them at the appellate

stage would unnecessarily complicate the proceedings and would

be of no consequence either of the parties for contesting the

appeal for permanent injunction. The order of the learned trial

court is a well reasoned order and does not called for any

interference. The precedent law cited does not apply in the

given facts and circumstances of the present case.

In view of the above, the present petitions are dismissed. All

pending applications stand disposed of accordingly.

(DR.PUSHPENDRA SINGH BHATI),J.

19-Jitender

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