Surya Deo Tyagi vs Chandradeo Tyagi and Others

Anjani Kumar, J.—Heard Sri Manoj Misra, learned Counsel appearing on behalf of the petitioner and Sri W. H. Khan, learned Counsel who has accepted notice on behalf of respondent Nos. 2 and 3 as well as Sri Vijay Prakash, learned Counsel for respondent No. 1.

The petitioner-defendant aggrieved by an order passed by the lower appellate court dated 21st February, 2005, by which application under Order XLI, Rule 27 of the CPC filed by the appellant-respondent for adducing additional evidence has been allowed thereby 29 documents were accepted on record, approached this Court by means of present writ petition under Article 226 of the Constitution of India.

Learned Counsel for the petitioner-defendant submitted that the date of application for adducing additional evidence is itself 21st February, 2005 and on the same date, the application filed by the appellant-respondent was allowed without giving any opportunity to the petitioner to raise his objection as to why at the appellate stage, the application under Order XLI, Rule 27 of the CPC should be allowed. Learned Counsel for the petitioner-defendant further submitted-that from the order sheet of the date, i.e., 21st February, 2005, it is apparent that counsel for both sides were present and the matter was heard after hearing learned Counsel for the parties. A perusal of the order sheet reveals that the order impugned in the present writ petition has been passed by the lower appellate court without giving any opportunity to the petitioner to raise his objection. Nonetheless in the interest of justice, it was the duty of the lower appellate court to afford an opportunity to the petitioner to raise his objection, which has not been done.

Learned Counsel for the appellant-respondent further submitted that it is now not open to the petitioner to challenge the order impugned in the present writ petition, as the application for adducing additional evidence has already been allowed. To me it appears that mere accepting the same, cannot be a bar to challenge the order under the provisions of Article 226 of the Constitution of India.

In view of what has been stated above, this writ petition succeeds and is allowed. The order dated 21st February, 2005, passed by the lower appellate court is quashed. The matter is remanded back to the lower appellate court with the direction to decide the application under Order XLI, Rule 27 of the CPC after affording opportunity to the petitioner-defendant expeditiously, preferably within a period of six weeks'' from the date of presentation of a certified copy of this order before it.