The application for appointing a commission under Order 26 Rule 9 of C.P.C. should be considered at the stage of final hearing of the appeal, as per the legal framework established by the Apex Court.

MANOJ K. TIWARI, J.

1. In this case, petitioner is aggrieved by the order dated 04.12.2018 passed by learned appellate court, whereby his application for appointment of commission under Order 26 Rule 9 of C.P.C. read with Order 41 Rule 27 of C.P.C. was dismissed.

2. Facts of the case, in brief, are as follows:-

3. Respondent No. 1 filed a suit for mandatory and prohibitory injunction against father of the petitioner – Satya Krishna Dobhal, which was decreed by learned trial court. During pendency of the suit, petitioner moved an application under Order 26 Rule 9 of C.P.C. for appointing commission for inspection of the spot, which was rejected by learned trial court vide order dated 06.09.2014. Petitioner filed regular first appeal under Section 96 of C.P.C. against the judgment and decree passed by learned trial court. In the memo of appeal, he took a specific ground that rejection of application for appointment of commission by the trial court was wrong and if the said application was allowed then the result would have been different. Thereafter, before the appellate court also petitioner moved an application for appointment of commission under Order 26 Rule 9 read with Section 41 Rule 27 of C.P.C. The said application was rejected by learned appellate court vide judgment and order dated 04.12.2018, against which this petition has been filed under Article 227 of the Constitution of India.

4. Mr. Piyush Garg, learned counsel for the petitioner has placed reliance upon the judgment dated 01.06.2017 rendered by co-ordinate Bench of this Court in Writ Petition No. 148 of 2016 (M/S). In the said judgment, this Court has relied upon the law laid down by Apex Court in the case of Union of India vs. Ibrahim Uddin and another reported in (2012) 8 SCC 148 and held as under:

“The lower appellate court, therefore, ought to have decided the application under Order 26 Rule 9 CPC at the time of final disposal of civil appeal. The order impugned cannot sustain in the eye of law. The impugned order dated 15.12.2015 is set aside. The court below is directed to decide the application under Order 26 Rule 9 CPC at the time of final disposal of regular civil appeal in view of Ibrahim Uddin’s decision (supra)”.

5. Hon’ble Apex Court in the case of Ibrahim Uddin (supra) has held as under:

“49. An application under Order 41 Rule 27 Code of Civil Procedure is to be considered at the time of hearing of appeal on merits so as to find 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 is, whether the Appellate Court is able to pronounce judgment on the materials before it without 4 taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh and Ors., AIR 1951 SC 193; and Natha Singh and Ors. v. The Financial Commissioner, Taxation, Punjab and Ors. AIR 1976 SC 1053).

50. In Parsotim Thakur and Ors. v. Lal Mohar Thakur and Ors. AIR 1931 PC 143, it was held:

“….The provisions of Section 107, Civil Procedure Code, as elucidated by Order 41, R. 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the Court of appeal.

…. Under Rule 27, Clause (1) (b), it is only where the appellate Court "requires" it (i.e. finds it needful). ...The legitimate occasion for the exercise of this disc