- (1.) THIS writ petition has been filed by the petitioner against the order dated 14.10.2011, whereby, the application filed under Oder 41 Rule 27 CPC has been rejected by the first appellate court.
(2.) IT is submitted by learned counsel for the petitioner that in view of the express provisions of Order 41 Rule 27 CPC, the application could not have been decided by the appellate court during the pendency of the appeal and the same was required to be decided at the time of final hearing of the appeal. In this regard, reliance was placed on the judgment of Hon'ble Supreme Court in the case of Union of India Vs. Ibrahim Uddin & Anr., reported at 2012 DNJ (SC) 742, wherein, the Hon'ble Supreme Court has held as under:- "41. Thus, from the above, it is crystal clear that 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 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, 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." The said judgment has been followed by this Court in the case of Rajendra Kumar Dagadi & Ors. Vs. Addl. District Judge No.2, Beawar & Ors., reported at 2013 (1) DNJ (Raj.) 118. The above legal position is not disputed by learned counsel for the respondent.
(3.) IN that view of the matter, the writ petition is allowed. The impugned order dated 14.10.2011 is set aside and the learned appellate court is directed to decide the appeal and the application filed by the petitioner under Order 41 Rule 27 CPC simultaneously. It is made clear that setting aside of the impugned order and remand of the matter to the appellate court for decision of the application under Order 41 Rule 27 CPC afresh alongwith the appeal itself should not be construed as a view of this Court on merits of the matter and appellate court should not be influenced by the order of remand while deciding the application under Order 41 Rule 27 CPC. The application should be decided strictly in conformity within the scope of Order 41 Rule 27 CPC. No costs.;