The court mandated that applications for additional evidence under Order 41 Rule 27 must be considered at the final hearing of the appeal, ensuring comprehensive adjudication.

Hon’ble Shri Justice Rakesh Mohan Pandey Judgment On Board

16-06-2025

1) By way of this petition, the petitioner has challenged the order passed by the learned Additional Judge to the District Judge, Sarangarh, District – Sarangarh-Bilaigarh (C.G.), in Civil Appeal No. 29/ 2023 dated 08.04.2025, whereby the learned appellate Court has rejected the application filed by the petitioner/ plaintiff under Order 41 Rule 27 of CPC .

2) Learned counsel for the petitioner/plaintiff submits that a suit was filed by the plaintiff for declaration of title, permanent injunction and to declare the orders passed by the Tehsildar and SDO (R) null and void. He further submits that the Civil Suit was partly allowed by the learned Trial Court vide judgment and decree dated 28.03.2023. The petitioner preferred a regular appeal (Civil Appeal No. 29/2023) before the learned appellate Court against the aforesaid judgment and decree along with an application under Order 41 Rule 27 of CPC . He contends that the petitioner wanted to demonstrate his right over the suit property by filing certain documents but the learned appellate Court vide its order dated 08.04.2025 rejected the application for taking additional evidence on record, whereas the regular appeal remains pending. He further contends that the law in this regard is no more res-integra and the Hon’ble Supreme Court in the matter of Union of India v. Ibrahim Uddin and another¹ has held that the Appellate Courts should decide the application for taking additional evidence on record at the stage of final hearing of the appeal.

3) On the other hand, learned State counsel would oppose. He submits that there is no infirmity in the order impugned.

4) Heard learned counsel for the parties and perused the documents placed on the record.

5) Perusal of the order impugned indicates that the learned appellate

1 . (2012) 8 SCC 148 Court has decided the application moved under Order 41 Rule 27 of CPC separately whereas the appeal is still pending consideration.

6) Order 41 Rule 27 of CPC reads as under:-

“Order 41, Rule 27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-

(a) [***]

[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]

(b) [***]

the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to the produced, by an Appellate Court, the court shall record the reason for its admission. ”

7) A careful reading of sub-rule (aa) of the aforesaid Order 41 Rule 27 of the CPC would show that the object of the rule is to provide an opportunity to the party who was not able to produce the evidence in the trial Court and thereby to provide an opportunity to produce the same in the appellate Court. In order to produce the documents, the conditions mentioned in sub-rule (aa) of Order 41 Rule 27 of the CPC must be satisfied to exist.

8) In the matter of State of Rajasthan v. T.N. Sahani and others , ² their

2 . (2001) 10 SCC 619 Lordships of the Supreme Court have held that Order 41 Rule 27 of the CPC has to be considered at the time of hearing of the appeal on merits and as such the application should be decided along with appeal and held as under:-

"This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into to the documents which are sought to be filed as additional evidence. need be looked into to pronounc