Rajasthan High Court | Order 41 Rule 27 CPC | Additional Evidence Plea During Pendency Of Appeal To Be Considered At Final Hearing
Safiya Malik
The High Court of Judicature for Rajasthan Single Bench of Justice Anoop Kumar Dhand has rejected a writ petition challenging an appellate order and directed the Appellate Tribunal to decide a pending application under Order 41 Rules 25 and 27 of the Code of Civil Procedure, 1908, along with the main appeal. The Court held that the Appellate Tribunal had not committed any error in rejecting an application under Section 151 CPC seeking a pre-decisional judgement on the admissibility of additional evidence. The Court further directed the Appellate Tribunal to decide the appeal on merits within six months from receipt of the certified copy of this order.
The matter arose from proceedings initiated under Section 9 of the Rajasthan Rent Control Act, 2001. The respondents had filed an application against the petitioner on the ground of default in payment of rent. The Tribunal allowed the application vide order dated 04.12.2019. Aggrieved, the petitioner preferred an appeal before the Appellate Rent Tribunal, Jaipur Metro-I. During pendency of the appeal, the petitioner filed an application under Order 41 Rules 25 and 27 CPC read with Section 151 CPC. The basis of this application was that the eviction was sought on the ground of default in payment despite a notice dated 22.04.2009, and the petitioner sought to bring additional evidence on record. The application was kept pending by the Appellate Tribunal until final disposal of the appeal.
Subsequently, the petitioner moved another application under Section 151 CPC requesting that the application under Order 41 Rule 25 and 27 CPC be decided prior to hearing the appeal. This request was rejected by the Appellate Tribunal on 06.08.2021. The petitioner approached the High Court challenging this rejection, arguing that the Hon’ble Supreme Court in North Eastern Administration Gorakhpur v. Bhagwan (2008) 8 SCC 511 had laid down that applications under Order 41 Rule 27 CPC should be decided prior to hearing the appeal. The petitioner thus sought a direction to the Appellate Court to first adjudicate the application for additional evidence.
The respondents opposed this contention, arguing that the application for additional evidence had not been rejected but was kept pending to be considered along with the appeal. They further contended that no supporting documentary evidence had been filed with the application and that the Appellate Court had not erred in rejecting the Section 151 CPC request.
The Court noted that the primary question for consideration was whether an application under Order 41 Rule 25 and 27 CPC should be decided before or along with the appeal.
The Court extracted the relevant provisions of Order 41 Rules 25 and 27 CPC. Justice Anoop Kumar Dhand recorded: “Order 41 Rule 25 CPC deals with the power of the Appellate Court for framing of additional issue and referring the matter to the Trial Court if deems necessary. Similarly, the provisions contained under Rule 27 Order 41 deals with the power of Appellate Court allowing the parties to produce additional evidence at the appellate stage.”
Quoting extensively from Union of India v. Ibrahim Uddin & Ors. (2012) 8 SCC 148, the Court noted: “An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out 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 Court further quoted the Supreme Court: “Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause.”
The High Court also relied on D.V. Lakshmana Rao v. State of Karnataka (2001) 4 KLJ 185, where it was held that in case of conflicting judgments, the later view would prevail unless the earlier judgment was delivered by a larger Bench. Justice Dhand recorded: “In the instant case, the judgment of the Hon’ble Apex Court in the case of North Eastern Administration Gorakhpur (supra) is a previous judgment and the view expressed by the Hon’ble Apex Court in the case of Ibrahim Uddin (supra) is a later view by a Bench of equal number of Judges. Hence, following the ratio as propounded in the case of Ibrahim Uddin (supra), it can safely be held that the application filed under Order 41 Rule 27 CPC is required to be considered at the time of deciding the appeal on merits.”
Accordingly, the Court concluded that the Appellate Tribunal had not erred in rejecting the Section 151 CPC request and that the application under Order 41 Rule 25 and 27 CPC would be considered during the hearing of the main appeal.
Justice Anoop Kumar Dhand held: “In the considered opinion of this Court, the Appellate Tribunal has not committed any error in rejecting the application submitted by the petitioner under Section 151 CPC as no adverse order has been passed against the petitioner. His application filed under Order 41 Rule 25 & 27 CPC is still lying pending for adjudication before the Appellate Court and the same would be decided along-with the main appeal, preferred by the petitioner.”
The Court stated: “This Court finds no merit and substance in the instant writ petition. Accordingly, the writ petition stands rejected.”
Further directions were issued: “The Appellate Court is directed to decide the application submitted by the petitioner under Order 41 Rule 25 & 27 CPC along-with the appeal and before passing the final order, appropriate orders be passed on the above application, after hearing both the sides.”
Additionally, the Court directed: “The Appellate Court is further directed to decide the main appeal itself as early as possible, preferably within a period of six months from the date of receipt of certified copy of this order.”
The Court also ordered that the stay application and all pending applications, if any, stood disposed of.
Advocates Representing the Parties
For the Petitioners: Mr. Suresh Kumar Sahani with Mr. Ram Babu Sharma
For the Respondents: Mr. R.K. Daga with Mr. M.L. Sharma, Mr. Aanjnaiy Sharma, and Mr. Rajanikant Tijara
Case Title: Shankar Lal Saini v. Smt. Nagina Patoliya & Anr.
Neutral Citation: 2025: RJ-JP:31851
Case Number: S.B. Civil Writ Petition No. 8964/2021
Bench: Justice Anoop Kumar Dhand
