The Allahabad High Court while allowing the petition said that the Application under Order 41 Rule 27 CPC is required to be considered at the time of hearing of the Appeal on merits so as to find out whether the documents/evidence sought to be adduced have any relevance/ bearing on the issue involved.
A Single Bench of Justice Ashutosh Srivastava passed this order while hearing a petition filed by Rameshwari Devi and Another.
The petition under Article 227 of the Constitution of India has been filed for setting aside the order dated 08.08.2023, passed by the Appellate Authority/ Additional District Judge, Special Judge (EC Act) Pilibhit, whereby the Application filed by the petitioner for adducing additional evidence under Order 41 Rule 27 read with Section 151 CPC has been rejected.
It is the case of the petitioners that they are tenants of a shop situated in Mohalla Bazar Katra, Tehsil and Town Area Bisalpur, Pilibhti and are conducting the business of Bangles from the shop in question. Originally, the tenancy of the shop was in the name of Radheyshyam the late husband of the petitioner no 1 and father of petitioner no 2.
After the death of Radheshyam the tenancy devolved upon the petitioners. The shop was originally owned by one Sushil Kumar and was purchased by the respondent herein vide Sale Deed dated 21.07.2015.
A Release Application under Section 21(1)(a) of the UP Act of 1972 was filed by the respondent without issuing notice to the petitioners as contemplated under the 1st Proviso to Section 21(1) of the Act.
The petitioners appeared in the Case and filed their objections taking a specific plea in their objections that the plaintiff/ respondent had not served any notice upon the petitioners/ tenants that he had purchased the shop. The Prescribed Authority, vide judgment and order dated 20.01.2023 allowed the Release Application. The petitioners being aggrieved by the order of the Prescribed Authority, have preferred an Appeal.
During the pendency of the Appeal the original Counsel of the petitioners, conducting the Appeal, namely V.S Ashok took retirement from the profession and the petitioners had to engage another counsel namely Ishan Gupta.
Ishan Gupta, Advocate on going through the file opined that certain relevant documents had not been brought on record and accordingly the petitioners preferred an Application under Order 41 Rule 27 CPC dated 09.05.2023 annexing the documents/ evidence to be brought on record for consideration of the Appellate Authority in seisin of the Appeal.
The Appellate Authority vide order dated 08.08.2023 has rejected the Application under Order 41 Rule 27 CPC which order has been impugned in the petition.
The Court observed that,
Order 41 Rule 27 CPC provides for production of additional evidence in Appellate Court. The Appellate Court in exercise of the discriminatory jurisdiction and subject of fulfilment of the conditions laid down under Order 41 Rule 27 CPC may allow the parties to adduce additional evidence.
A perusal of the above provisions shows that it is an exception to the general principle that the Appellate Court should not travel outside the record of the lower Court and cannot take any evidence in Appeal. Order 41 Rule 27 enables the Appellate Court to take Additional Evidence in exceptional circumstances if and only if the conditions laid down in this provision are found to exist. A certain discretion is permitted to be exercised by the Appellate Court while considering any application under Order 41 Rule 27 which is required to be exercised judicially. The question regarding the exercise of discretion and at what stage by the Appellate Court while considering an Application under Order 41 Rule 27 CPC came up for consideration before the Apex Court in the case of Union of India vs Ibrahim Uddin and Another, reported in 2012 (8) SCC 148.
As regards the stage of consideration of the Application the Apex Court was of the view that the Application under Order 41 Rule 27 was liable to be considered at the time of hearing of the Appeal on merits so as to find out whether the evidence sought to be adduced have any relevance/ bearing on the issue involved. It observed that the admissibility of the Additional Evidence does not depend upon the relevance to the issue at 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 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.
“Now coming to the order date 08.08.2023, passed by the Appellate Authority, the Court found that in substance the Application under Order 41 Rule 27 CPC has been rejected on the ground that the conditions laid down under Order 41 Rule 27 were not satisfied and further that in its opinion the Additional Evidence sought to be brought on record was not required to pronounce judgment or for any other substantial cause. The discretion has been exercised by the Appellate Court against the petitioners (Appellant) even without discussing whether the documents sought to be brought on record were necessary or not for deciding the real controversy at hand. Besides, the Application has been rejected even prior to hearing of the Appeal. In the opinion of the Court, the order of the Appellate Authority rejecting the Application is contrary to the ratio of the decision of the Apex Court in the Case of Ibrahim Uddin (Supra) inasmuch as the Application under Order 41 Rule 27 CPC is required to be considered at the time of hearing of the Appeal on merits so as to find out whether the documents/evidence sought to be adduced have any relevance/ bearing on the issue involved and the true test being 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”, the Court observed while allowing the petition.
“The order dated 08.08.2023, passed by the Appellate Authority/ Additional District Judge /Special Judge (EC Act) Pilibhit in PA Appeal, (Rameshwari Devi and another vs Rakesh Mishra) rejecting the Application filed by the petitioner under Order 41 Rule 27 CPC for adducing Additional Evidence at the Appellate Stage is set aside. The Appellate Authority is directed to reconsider the petitioners’ application in accordance with the law laid down by the Apex Court in the Case of Ibrahim Uddin (Supra) and make all endeavour to decide the Appeal expeditiously in accordance with law without granting any unnecessary adjournments to either of the parties”, the Court ordered.