O. 41 R. 27 of the Code of Civil Procedure applies to miscellaneous appeals, and such applications should be decided along with the appeals and not independently of them.

1. - The plaintiff got a temporary injunction against the defendants from the trial court restraining them to interfere in his possession. Against that, the defendants filed an appeal in which an application under O. 41 R. 27 of the C.P.C. was filed to produce certain documents. The first appellate court dismissed the application saying that O. 41 R. 27 of the Code is not applicable to miscellaneous appeals and that provision is applicable only to appeals from decrees. The first appellate court also came to the conclusion that the documents are not relevant for decision of the appeal and dismissed the application, but the appeal is still pending. Against the order of dismissal of the application the defendants have filed this Revision.

2. As far as the legal proposition whether O. 41 R. 27 will be applicable in miscellaneous appeals or not, so far as Rajasthan is concerned, the matter stands concluded by a Division Bench judgment of this Court in Pukhraj v.U.I.T., D.B. Civil Reference No. 241/89 decided on 5.7.90 , wherein it is held that even to miscellaneous appeals O. 41 R. 27 of the Code will apply. Somebody may doubt that in miscellaneous appeals, namely the appeals other than from decrees, O. 41 R. 27 of the Code may not apply. In that event the court always has inherent jurisdiction in the interest of justice to permit a party to bring on record certain material at-least for purpose of disposal of miscellaneous matters like interim orders etc.

3. Another point that may arise for consideration is whether such like applications are to be disposed of under the aforesaid provision or under in-herent jurisdiction along with the appeal or independent of the appeal. The additional evidence or more material may be needed for disposal of the appeal one way or the other and that can be decided only when the appeal is being heard along with the application filed for taking the additional documents on record and not independently of it. In this behalf the procedure adopted by the first appellate court is not correct. I will strongly recommend to all the subordinate courts to follow the procedure of deciding such like applications along with the appeals and not independently of the appeals.

4. For the reasons recorded above, the revision is allowed, the order of first appellate court is set aside and the case is remitted to the first appellate court to take up the application filed by the defendants before it, along with the appeal filed by the defendants and dispose of both the matters by a common order and judgment.

5. It would be open to the first appellate court to allow the documents to be placed on record or not to allow the documents to be placed on record for decision of the miscellaneous appeal and this order of mine should not be taken to mean that his discretion in this behalf has in any way been taken away.

6. The first appellate court has also observed in the impugned order that the documents are not relevant for decision of the appeal before him. Even in this matter the first appellate court would be able to decide better when the appeal is taken up along with the application. The record of first appellate court is here and is ordered to be sent back forthwith where the parties are directed to appear on 13.1.95.Revision allowed.

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