Rajasthan High Court
Imdad Khan vs Shri Rankeshwar Hanuman Jin on 8 July, 2022
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No.998/2015
Imdad Khan Son of Late Kale Khan, resident of Mohallan Itayan
Pada, Purana Shahar Dholpur, Tehsil and District Bharatpur
(Rajasthan).
----Petitioner
Versus
1. Shri Rankeshwar Hanuman Ji through Mahant Gyan Prakash
son of Shri Fateh Singh, resident of Mohallan Itayan Pada,
Purana Shahar Dholpur, Tehsil and District Dholpur (Rajasthan).
2. Sabbir Khan son of Bashir Khan,
3. Sattar Khan son of Ashraf Khan,
4. Sakura son of Naseer Khan (since deceased) through his legal
heirs:-
4/1 Shakeena wife of Sakura,
4/2 Jahur Khan son of Sakura,
4/3 Rahoof Khan son of Sakura,
4/4 Gaffar Khan son of Sakura,
All resident of Dholpur, District Dholpur.
4/5 Shajahan daughter of Sakura, resident of Murena (Madhya
Pradesh)
----Plaintiffs-Respondents
5. Municipal Board, Dholpur through its Chairman
----Defendant-Respondent
For Petitioner(s) : Mr.Fahad Hasan, Adv.
For Respondent(s) : Mr.Neeraj Sharma, Adv.
Mr.Pavan Sharma, Adv.
Mr.Nitin Sinsinwar, Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Order
08/07/2022
This writ petition has been filed by the petitioner
challenging the order dated 10.12.2014, whereby application filed
by the petitioner under Order 41 Rule 27 CPC has been dismissed.
(2 of 5) [CW-998/2015]
Learned counsel for the petitioner submitted that the
petitioner had moved an application before the Appellate Court,
wherein, he wanted to produce certain documents, which were
having relevance for deciding the controversy involved in the
appeal.
Learned counsel submitted that reasons were given in
the application, as why, these documents were not filed in the Civil
Court and in order to prove the issue relating to ownership of the
property in question, documents sought to be produced by the
petitioners, were relevant and as such, the Court below could not
have dismissed the application.
Learned counsel further submitted that the Appeal
No.73/2011 clearly revealed that appeal was pending since 2011
before the Appellate Court and the Court below could not have
recorded a finding that application for producing the documents,
was filed after a delay of more than 13 years.
Learned counsel for the petitioner has placed reliance
on a judgment dated 10.03.2022 passed by the Apex Court in the
case of Sanjay Kumar Singh Vs. The State of Jharkhand in
Civil Appeal No.1760/2022.
Learned counsel on the strength of said judgment
submitted that the Appellate Court has to exercise its power under
Order 41 Rule 27 CPC to take additional evidence in exceptional
circumstances. Learned counsel further submitted that in order to
remove the cloud of doubt over the case if the evidence has a
direct and important bearing on the main issue in the suit and
interest of justice clearly renders it imperative then such
application should be permitted and documents should be taken
on record.
(3 of 5) [CW-998/2015]
Learned counsel submitted that the additional evidence
so produced before the Appellate Court will always enable the
Appellate Court to pronounce the judgment and do substantial
justice.
Learned counsel submitted that the Apex Court has
reiterated the principle that the substantial cause or for proper
pronouncement of judgment, delay in filing the application is not a
relevant consideration and as such, the Court below ought to have
exercised its jurisdiction.
Learned counsel for the respondents submitted that the
Court below has not committed any error in passing the order
impugned order.
Learned counsel submitted that as far as filing of
appeal is concerned, the same was filed in the year 2001 and only
due to change of Court and some administrative reasons, new
number of appeal was given in 2011 and as such, it cannot be said
that the appeal was filed for the first time in 2011.
Learned counsel further submitted that the petitioner
had earlier filed application before the Appellate Court and the
Appellate Court on 04.04.2005 and 24.11.2014, had permitted the
appellant to produce certain documents on record and as such, no
repetitive choice can be given to any litigant to file the application,
as and when, he so chooses.
Learned counsel for the respondents submitted that the
documents which are sought to be produced by the petitioner, has
no relevance in the present case.
Learned counsel further submitted that the petitioner-
defendant had also initiated the proceedings against the
respondents in Wakf Tribunal claiming the relief of declaration and
(4 of 5) [CW-998/2015]
permanent injunction and said application has also been dismissed
by the Wakf Tribunal vide order dated 10.01.2019 (Suit
No.21/2001).
Learned counsel submitted that considering all these
facts, endeavour of petitioner seems to prolong the proceedings
and as such, this Court may dismiss the present writ petition.
I have heard learned counsel for the parties and
perused the material available on record.
This Court finds that interim order was passed in the
present writ petition on 01.04.2015, whereby, the Trial Court was
directed not to pass any final order.
This Court finds that the order dated 10.12.2014
mentions about filing of documents at appellate stage earlier on
two occasions and as such, the petitioner moved third application
before the Court below to take certain documents on record.
There is no quarrel on the proposition that the
additional evidence may be placed before the Appellate Court and
the Appellate Court in order to pronounce the judgment and to
decide the proper issues, can take additional evidence, at the
appellate stage.
This Court further finds that the Appellate Court has to
consider the stage of the appeal and further, whether previous
applications have been allowed by the Court, in this case on two
occasions earlier, the petitioner has been allowed to file additional
documents and as such, the Court below has not committed any
error in rejecting the application of the petitioner.
This Court further finds that appeal was filed by the
petitioner in 2001 and now almost 21 years have passed and till
(5 of 5) [CW-998/2015]
date, decision of the appeal has not been given by the Appellate
Court.
This Court finds that the interim order was passed by
this Court in the year 2015 and almost 7 years have passed, the
Appellate Court has not been able to proceed further in the
matter.
This Court finds that the judgment passed by the Apex
Court in the case of Sanjay Kumar Singh (supra) reiterates the
well settled law that additional evidence can be allowed at the
appellate stage. The said judgment further does not throw any
light on the fact of filing of repetitive applications and that too
belatedly and as such, the said judgment is of little assistance to
learned counsel for the petitioner.
This Court finds that no error has been committed by
the Court below while passing the impugned order.
Accordingly, the present writ petition stands dismissed.
The interim order dated 01.04.2015 passed by this
Court is also vacated.
(ASHOK KUMAR GAUR), J
Himanshu Soni/37
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