HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition Misc. Single No. 716 of 2025

11 July, 2025 Hena Hasan Desai … Petitioner Versus Moti Mahal Deluxe A Partnership Firm … Respondent ----------------------------------------------------------------------

Presence:-

Ms. Aastha Mehta & Mr. Pramod Bailwal, learned counsel for the petitioner ----------------------------------------------------------------------

(Hon'ble Manoj Kumar Tiwari, J.)

JUDGMENT

1. By this petition filed under Article 227 of the Constitution, petitioner has challenged order dated 15.07.2023 passed by 4^th Additional District Judge, Dehrdun in SCC Revision No. 1 of 2022. By the said order, application filed by petitioner, for taking additional evidence on record in a revision filed under Section 25 of the Provincial Small Cause Courts Act, 1887, was rejected.

2. It transpires that petitioner’s mother filed an eviction suit against the respondent as Mutwalli by contending that the suit property belongs to a Wakf. During pendency of the suit, petitioner’s mother passed away on 12.05.2021 and petitioner was substituted as plaintiff in the suit. The suit was dismissed by learned Judge, Small Cause Court, Dehradun vide judgment dated 02.04.2022, inter alia on the ground that an unregistered Wakf cannot maintain a suit in view of Section 87 of The Wakf Act, 1995.

3. Petitioner filed a revision under Section 25 of the Provincial Small Cause Courts Act, 1887 challenging the judgment rendered by learned trial court, which is pending. Before the revisonal court, petitioner moved an application under Section 151 CPC for taking certified copy of Wakf Register on record to show that Wakf in question is a registered Wakf. Learned revisional court rejected the said application vide order dated 15.07.2023. Thus, feeling aggrieved, petitioner has approached this Court.

4. Heard learned counsel for the petitioner and perused the record.

5. Order 41 Rule 27 CPC is extracted below for ready reference:-

“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) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (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 requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

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

6. Perusal of Order 41 Rule 27 CPC reveals that it enables appellate court to take additional evidence in exceptional circumstances. The general principle is that appellate court should not travel beyond the record of the trial court and cannot consider any evidence, which was not placed before the trial court. Hon’ble Supreme Court has held that the appellate court may permit additional evidence only and only if the conditions laid down in Order 41 Rule 27 CPC are found to exist. The parties are not entitled, as of right, to the admission of such evidence. The said provision does not apply, when on the basis of evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. Hon’ble Supreme Court in the case of Union of India vs Ibrahim Uddin & another, reported in (2012) 8 SCC 148, has held a