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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
A.J. Desai, Aniruddha P. Mayee, JJ.
Surat Doodh Utpadak Sahakari Mandali Ltd. – Appellant
Vs.
Devshibhai Haribhai Patel – Respondent
Letters. Patent Appeal No. 1462 of 2019 in R/Special Civil Application No. 12628 of 2019 and Civil Application No. 1 of 2019 in R/Letters Patent Appeal No. 1462 of 2019
Decided On : 10-02-2022
Gujarat Cooperative Societies Act, 1961 - Section 99(4) - Constitution of India, 1950 - Article 227, 226, 243ZD – Civil Procedure Code, 1908 - Section 97, 150(12), 211(7), Order 41 - Evidence Act, 1872 - Specific Relief Act, 1963 - Cantonment Act, 2006 - Land - Seeking Declaration and Injunction - Whether judgment and decree passed by lower appellate court is vitiated in law inasmuch as land in dispute which was recorded in Column B-4 under Rule 6 of Cantonment Land Administration Rule 1937 was wrongly and illegally discarded on ground of secondary evidence in presence of original register maintained by Military Estate off icer - Whether certified copy of relevant registers maintained under Cantonment Act are admissible in evidence and appellate court erred in law in discarding same illegally against relevant provisions of Evidence Act and decreed suit of plaintiff on false pretext that there is no document was filed on behalf of defendant - Whether appellate court did not consider this aspect at all that suit for declaration without possession is not maintainable is barred by provision of Specific Relief Act - Whether lower appellate court has committed illegality while accepting Will without its proof by plaintiff – Held, It is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during pendency of appeal, is to be heard at time of final hearing of appeal at a stage when after appreciating evidence on record, court reaches conclusion that additional evidence was required to be taken on record in order to pronounce judgment or for any other substantial cause - In case, application for taking additional evidence on record has been considered and allowed prior to hearing of appeal, 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 judgment or not, remains inconsequential/inexecutable and is liable to be ignored - High Court admittedly did not answer any of them, though had question Nos. 2, 3 and 4 been decided, result would have been otherwise – Court hereby direct that the application at Exh. 13 shall be heard and decided simultaneously at the time of hearing of appeal finally - It would be open for present respondents-original plaintiffs to raise all contentions, including maintainability of application and also about admissibility of those documents which appellant intended to produce before Appellate Tribunal – Application disposed of.
JUDGMENT:
A.J. Desai, J.
1. Admit. Learned advocate Mr. Ravindra Shah waives service of admission on behalf of the respondents.
2. By way of present appeal under Clause 15 of the Letters Patent, the appellant-original petitioner has challenged an order dated 23.7.2019 passed by the learned Single Judge in Special Civil Application No. 12628 of 2019 by which the learned Single Judge has dismissed the writ petition filed by the petitioner challenging the order dated 11.7.2019 passed by the Gujarat State Cooperative Tribunal, Ahmedabad ["the Tribunal" for short] below application Exh. 13 in Appeal No. 49 of 2016 which was filed by the appellant therein (present appellant-original petitioner) under Regulation 17 of the Gujarat State Cooperative Tribunal Regulations, 1964.
3. The short facts which emerge from the record are as under:
3.2 The appellant society filed an appeal being Appeal No. 49 of 2016 challenging the said judgment and decree before the learned Tribunal. During pendency of the appeal, the appellant-original petitioner submitted an application at Exh. 13 on 16.11.2017 under Regulation 17 of the Gujarat State Cooperative Tribunal Regulations, 1964 ["the said Regulations" for short] seeking permission to produce about 26 documents as per the list annexed to the said application.
3.3 The Tribunal rejected the said application, inter alia, holding that there is no reference of those documents, which the appellant intends to produce, in the memo of the appeal nor any supporting affidavit was filed. The said application was also dismissed holding that the Tribunal does not find any reason to entertain the same and also does not want to exercise its discretionary powers under Regulation 17 of the said Regulations. The said decision was challenged before this Court, which came to be dismissed by the learned Single Judge.
Hence, this appeal.
4. Mr. R.S. Sanjanwala, learned Senior Advocate assisted by Mr. Baiju Joshi, learned advocate for the appellant, would submit that the provisions under Regulation 17 of the said Regulations are at par with the provisions of Order 41 Rule 27 of the CPC. Relying upon Order 41 Rule 27 of CPC, he would submit that though there is no bar of production of additional evidence at the appellate stage, the same can be accepted under several circumstances. He would submit that the application, which was filed by the present appellant has been rejected by the Tribunal on the ground that there is no reference about those documents in the appeal memo nor any affidavit was filed supporting such application. He would submit that the appellant-original petitioner has submitted before the learned Single Judge that he is ready to make a fresh application in detail which was not accepted by the learned Single Judge. He would further submit that even the admissibility or acceptance of those documents, which the parties intend to produce at the appellate stage, can be considered at the time of hearing of the appeal. In support of his submissions, he has relied upon the decision of the Hon'ble Apex Court in case of Union of India v. Ibrahim Uddin & Anr. [(2012) 8 SCC 148]. By taking us through the findings of the Hon'ble Apex Court, which are recorded in para 49 to 52 below the expression "Stage of consideration", he would submit that the appellate Court can decide the admissibility or acceptance of such documents at the time of hearing of the appeal and therefore, the Tribunal ought to have decided the application Exh. 13 at the time off inal hearin
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