IMPORTANT POINT
Additional evidence – Application for taking additional evidence on record at appellate stage, even if filed during pendency of appeal, is to be heard at the time of final hearing of appeal.

JUDGMENT

M S Sonak, J. - Heard Mr. Sudin Usgaonkar, learned Senior Advocate for the Petitioner and Mr. A. D. Bhobe, learned Counsel for the Respondents.

2. Rule. Rule is made returnable forthwith at the request and with the consent of learned Counsel for the parties. Learned Counsel for the Respondents waives notice.

3. The challenge in this Petition is to the orders dated 18.10.2019 by which the First Appellate Court has dismissed the Petitioner’s application under Order 41 Rule 27 of the Civil Procedure Code (CPC) for seeking leave to produce additional evidence at the appellate stage and application under Order 6 Rule 17 of the CPC seeking leave to amend the plaint so that there is no allegation that the evidence which the Petitioner now seeks to produce is not backed by the pleadings in the plaint.

4. Mr. Usgaonkar, learned Senior Advocate, relied upon the decision of the Hon’ble Supreme Court in Union Of India vs Ibrahim Uddin & Anr, (2012) 8 SCC 148, to submit that both the applications should have been taken up only at the stage of final hearing of the appeal and not before. He submits that since this has not been done, the impugned orders are liable to be set aside with directions to the First Appellate Court to take up both the applications along with the final hearing of the appeal itself as was held by the Hon’ble Apex Court in Ibrahim Uddin (supra).

5. Mr. A. D. Bhobe, the learned Counsel for the Respondents, submits that the applications were in fact taken up at the stage of final hearing itself. He submits that in any case, the principle in Ibrahim Uddin (supra) does not apply to consideration of applications seeking leave to amend the plaint at the appellate stage. He submits that this is an attempt on the part of the Petitioner to simply delay the matter and in the absence of any jurisdictional error, this Petition is required to be dismissed.

6. The roznama has been produced on record by the Petitioners. The roznama does not indicate that the two applications were taken up at the stage of the final hearing of the appeal. True, Ibrahim Uddin (supra) is concerned, inter alia, that the stage at which an application under Order 41 Rule 27 of CPC is to be considered and does not delay with the issue of an application seeking leave to amend the plaint at the appellate stage. However, since it is submitted that both the applications seeking leave to amend the plaint and the application seeking leave to produce additional evidence at the first appellate stage are interconnected and have direct nexus with one another, according to me, it is only appropriate that in the peculiar facts of this case, both the applications are taken up for consideration along with the final hearing of the appeal itself.

7. In Ibrahim Uddin (supra), this is what the Hon’ble Supreme Court has observed at paragraphs 49, 50, 51, 52 and 53:—

“49. An application under Order XLI Rule 27 CPC 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 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 Natha singh v. financial Commr. Taxation).

50. In Parsotim Thakur v. Lal Mohar Thakur, it was held: (LW pp.