ORDER :

1. Rule. Mr. S.P. Majmudar, learned advocate, waives service of notice of rule for respondent.

2. With consent of learned advocates appearing for the respective parties, the matter is taken up for final hearing.

3. By way of present petition filed under Articles 226 and 227 of the Constitution of India, the petitioner-original plaintiff has challenged an order dated 18.06.2022 passed by learned Principal District Judge, Kachchh at Bhuj below Exh.8 in Commercial Appeal No. 3 of 2022, by which, learned Appellate Court has rejected the application filed by the appellant-plaintiff under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short).

4. Short facts arise from the record are as under:

4.1. That the appellant-plaintiff filed a suit being Commercial Suit No. 7 of 2020 ( Old Special Civil Suit No. 48 of 2008) in the Court of learned Principal Senior Civil Judge (Commercial Court) Gandhidham, Kachchh for recovery of Rs. 32,88,224/-. Learned Principal Senior Civil Judge (Commercial Court) Gandhidham, Kachchh by judgment and order dated 30.12.2021 dismissed the suit on completion of the evidence produced and led by the parties.

4.2. The said decision dated 30.12.2021 was challenged by the present appellant-original plaintiff by way of filing appeal being Commercial Appeal No. 3 of 2022 under Section 13 of the Commercial Court Act. The appellant-plaintiff has filed an application under Order XLI Rule 27 of the Code at Exh.8 permitting him to produce certain documents to establish the case. The said application was opposed by the respondent-original defendant.

4.3. The Appellate Court, by order dated 18.06.2022, rejected the application on the ground that the appellant had failed to establish any reasons for not producing the said documents before the trial Court.

4.4. Hence, this petition.

5. Ms. Nikita Barot, learned advocate for the appellant-original plaintiff, would submit that learned Appellate Court ought to have permitted the appellant-plaintiff to produce certain documents to complete the justice to the parties and thereby, learned Appellate Court ought to have given opportunity to the appellant-plaintiff to prove the said documents. She would submit that it would have been in the fitness of the things that the Appellate Court could have delivered the judgment and order in appeal on all issues including the issue of limitation upon which the suit has been dismissed, since the petitioner wanted to produce the documents which establishes that the said suit was filed within a period of limitation. In support of the case, she has relied upon the decision of the Hon’ble Supreme Court in the case of Sanjay Kumar Singh vs. State of Jharkhand, (2022) 7 SCC 247. Alternatively, she would submit that learned Appellate Court ought not to have rejected the application at Exh.8 and should have heard the appeal and at the time of hearing the appeal, the application at Exh.8 filed by the appellant-plaintiff under Order XLI Rule 27 of the Code should have been decided. By relying upon the decision of the Hon’ble Supreme Court in the case of Union of India vs. Ibrahim Uddin, (2012) 8 SCC 148, she would submit that the petition be allowed and appropriate order may be passed.

6. On the other hand, Mr. S.P. Majmudar, learned advocate for the respondent, opposed this petition and supported the reasons assigned by the Appellate Court. By taking us through the application at Exh.8, he would submit that the appellant has not stated any reason for not producing the documents before learned Trial Court in the suit proceedings. As per the provisions of Order XLI Rule 27 of the Code, the Appellate Court is precluded from permitting a party to produce the additional evidence unless the party establishes that on due diligence, the documents could not be produced and no such averments are made in the application. He would further submit that the application filed under Order XLI Rule 27 of the Code cannot b