The main legal point established in the judgment is the importance of deferring the hearing of an application under Order 41 Rule 27 CPC to the final hearing of the appeal and considering whether the additional evidence is required to enable the court to pronounce judgment or for any other substantial cause.

JUDGMENT :

TUSHAR RAO GEDELA, J.

[The proceeding has been conducted through Hybrid mode]

1. With the consent of parties, present petition is taken up for disposal today.

2. Petitioner challenges the order dated 02.12.2020 whereby the First Appellate Court heard the arguments on the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (CPC) and dismissed the same.

3. Mr. Bhalla, learned Senior Counsel appearing for the Petitioner submits that the first Appellate Court while hearing the arguments overlooked the law laid down by the Supreme Court in M/s. Eastern Equipment & Sales Ltd. Vs. Ing. Yash Kumar Khanna, (2008) 12 SCC 739, which was also considered by a Co-ordinate Bench of this Court in Savitri Devi vs. Gayatri Devi and Ors., 2010 (114) DRJ 327. This Court in Savitri Devi (supra) followed the dicta as laid down in the judgment of the Supreme Court in M/s. Eastern Equipment & Sales Ltd. (supra) regarding the manner and stage at which the Appellate Court ought to consider an application under Order 41 Rule 27 CPC.

4. Mr. Bhalla, learned Senior Counsel submits that the impugned order appears to have been passed in the teeth of the judgments referred to above and submits that being contrary to law, the impugned order ought to be set aside.

5. Per contra, Mr. Vachher, learned counsel for the Respondent draws the attention of this Court to paras 13, 16 and 19 of the judgment rendered by this Court in Savitri Devi (supra) to submit that once having adjudicated the application under Order 41 Rule 27 CPC, the only recourse left would be to challenge the same alongwith the final order to be passed by the Appellate Court in the next higher forum and not by way of a petition under Article 227 of the Constitution of India.

6. Mr. Vachher further submits that having undertaken this exercise contrary to the observations made in para 13, 16 and 19, the present petition ought to be dismissed being not maintainable.

7. In rebuttal, Mr. Bhalla, learned Senior Counsel draws the attention of the Court to para 21 of the judgment in Savitri Devi (supra) to submit that despite observations made therein, finally the Co-ordinate Bench directed that the applications under Order 41 Rule 27 CPC, which were dismissed prior to hearing of the appeals itself, be remanded back for a fresh consideration.

8. Having heard learned counsel for the parties and having perused the record, this Court finds it relevant to quote para 21 of the judgment rendered by the Co-ordinate Bench of this court in Savitri Devi (supra) :-

“21. The Supreme Court in Eastern Equipment & Sales Ltd. ordered setting aside of the orders of the appellate court under Order 41 Rule 27 CPC made prior to the hearing of the appeal and directed the hearing of the applications afresh along with the hearing of the appeal. Following the same, it is directed that in spite of dismissal of all the aforesaid petitions, the orders on applications under Order 41 Rule 27 of the CPC made prior to the hearing of the appeal in all the aforesaid cases are set aside and the applications ordered to be considered afresh along with the hearing of the appeal.

9. The other relevant judgment rendered by the Supreme Court is in the case of Union of India vs. Ibrahim Uddin and Ors., (2012) 8 SCC 148, observations made in paras 49 and 52 thereof, are extracted hereunder :-

“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 out 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 i