By The Said Order vs Unknown
2021 Latest Caselaw 2999 UK

IN THE HIGH COURT OF UTTARAKHAND
           AT NAINITAL
        ON THE 11TH DAY OF AUGUST, 2021
                          BEFORE:
 HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
     WRIT PETITION (M/S) NO. 2464 OF 2011
BETWEEN:
M/s Sona Buildtech Private Limited ... Petitioner
      (By Mr. I.P. Kohli, Advocate)

AND:
Sri Ram Kishan                             ... Respondent
      (By Ms. Priyanka Agarwal, Advocate)

                       JUDGMENT

1. This is defendant's petition against order dated 22.10.2011 passed by Additional District Judge/F.T.C.-V, Dehradun in Appeal No. 48 of 2011. By the said order, plaintiff's application, for adducing evidence at the appellate stage filed under Order 41 Rule 27 C.P.C., was allowed.

2. Hon'ble Supreme Court Union of India Vs Ibrahim Uddin & another reported in 2012(8) SCC 148 has held 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 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."

3. In the present case, perusal of the impugned order indicates that the application filed under Order 41 Rule 27 of C.P.C. by the plaintiff has been allowed not at the time of final hearing, but at the stage where the appellate court had no occasion to apply its mind to the merits of the evidence.

4. In view of the law laid down by Hon'ble Supreme Court in the case of Union of India Vs Ibrahim Uddin (supra), impugned order dated 22.10.2011 is quashed.

5. Accordingly, the writ petition is allowed. The matter is remitted back to the appellate court to consider plaintiffs/appellant application at the stage of final hearing of the appeal.

(MANOJ KUMAR TIWARI, J.) Aswal