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Judgment
Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
The petitioner who is the original plaintiff in Special Civil Suit No.440/2010 filed a civil suit for declaration and injunction. The said suit was dismissed by the trial Court. Being aggrieved by this the petitioner filed an Appeal bearing R.C.A. No.155/2019, which is pending before the District Judge-3 and A.S.J. Nagpur. During the pendency of the appeal the petitioner filed an application below Exh.-20 under order 41 Rule 27(aa)/(b) of the Civil Procedure Code seeking leave to produce additional evidence. Subsequently, another application below Exh-22 was filed under Order 39 and 41 read with Rule 27 to recall the Government handwriting expert or consider his evidence. The said applications are rejected by the Appellate Court vide order dated 20th September 2025. It is this order which is impugned in the present petition.
I have heard Mr. Abhijeet Khare, learned counsel for petitioner, Mr. N.H. Shams, learned counsel for respondent Nos.1 and 2 and Mrs. M.S. Naik, learned Assistant Government Pleader, Advocate for respondent Nos.5,6 and 7.
Mr. Khare, learned counsel principally raises a ground that as per the settled principle that applications under order 41 Rule 27 are to be decided at the time of final hearing, the approach of the Appellate Court in deciding the same at an interlocutory stage is in contrast with the binding precedents. It is further stated that the Appellate Court has not appreciated the controversy involved in the present matter in its proper perspective and the impugned order is, therefore, a result of non-application of mind. He places his reliance on the judgment of the Hon’ble Apex Court in the case of Union of India Vs. Ibrahim Uddin and another, (2012) 8 SCC 148 to support his contentions.
Per contra, Mr. Shams, learned counsel appearing for the respondent Nos.1 and 2 opposed the contentions. Even though he does not dispute the judgment that the Hon’ble Apex Court, he tried to differentiate the same on a fact that the same would not apply in the present case since there is nothing new which has to be produced. He points me out the order of the Appellate Court which in his opinion entirely considers the case laws and the binding precedent in that regard. He points out a portion in Para 20 of the impugned order that the Appellate Court has recorded a finding that parties are not entitled to produce additional evidence in the Appellate Court but for the three situations as mentioned in the said sub-Rule. In the submission of the learned counsel for the respondents the party is not entitled to produce any additional evidence without assigning any justifiable cause to show that despite due diligence so to produce the same it could not be produced earlier. He, therefore, prays for dismissal of the petition.
I have considered the contentions canvassed by the learned counsels for the respective parties and also gone through the impute order. As can be seen from the order, in the opinion of the Appellate Court the petitioner herein cannot be permitted to revisit the evidence adduced by him to fill-up the lacuna. It has also recorded a finding that the petitioner herein has already examined handwriting expert but the same has been discarded by the trial Court. Therefore, now calling a Government expert's opinion is only to amend the weakness in the case.
However, it seems that the Appellate Court has lost sight of the finding precedent of the Hon’ble Apex Court in the case of Union of India vs. Ibrahim Uddin and another (supra) in which the Hon’ble Apex Court by taking into consideration the entire case law on record in para 52 has recorded as under.
“52.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. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.”
In that view of the matter, the petition is allowed.
The impugned order dated 20.09.2025, passed by the District Judge-3 & ASJ, Nagpur in R.C.A. No.155/2019 is set aside.
The Appellate Court is directed to decide both the applications i.e. Exh.- 20 and 22 at the time of final hearing of the appeal along with the appeal itself..
Writ Petition is disposed of. Rule is made absolute in abovestated terms. No costs.