Jainendra Kumar Ranka, J. - (1.) BY instant writ petition, the plaintiff -petitioner has assailed the order dt. 03.10.2011 passed by the learned lower appellate Court by which the application filed by the plaintiff -petitioner under Order 41 Rule 27 read with Section 151 C.P.C. for taking documents on record at the appellate stage has been rejected. It is pleaded by learned counsel for the plaintiff -petitioner that the plaintiff -petitioner wanted to place on record "Patta", which was not available during the course of the arguments and at the time, the order was passed by the learned trial Court and it being relevant, the learned lower appellate Court should have considered the same. Counsel further submitted that the learned lower appellate Court was not justified in passing the order impugned and that the documents, which the plaintiff -petitioner, sought to be taken on record, were important and relevant for disposal of the appeal before the learned lower appellate Court.
(2.) LEARNED counsel for the defendants -respondents objects to the submission made by learned counsel for the plaintiff -petitioner and submits that the "Patta" was not placed on record before the learned trial Court and now it has no relevance at all at the appellate stage in the appeal before the learned lower appellate Court. He also submits that even it is mentioned by the learned lower appellate Court that there was no relief sought in so far as the "Patta" is concerned. I have considered the arguments advanced by learned counsel for both the parties and in my view, the learned lower appellate Court was unjustified in deciding the application filed by the plaintiff -petitioner under Order 41 Rule 27 read with Section 151 C.P.C. separately by the order impugned and in my view, the learned lower appellate Court ought to have decided the same while deciding the main appeal itself. It is a settled proposition of law that whatever documents, the either party wishes to place on record, then it is to be considered while disposing of the appeal.
(3.) REFERENCE may be made to the decision of Apex Court in the case of Eastern Equipment & Sales Limited vs. Ing. Yash Kumar Khanna, reported in : (2008) 12 SCC 739 wherein it has been observed as under: - We have heard learned counsel for the parties and after considering the facts and circumstances of the present case, we are of the view that in order to decide the pending appeal in which the application under Order 41 Rule 27 of the Code of Civil Procedure was filed ought to have been taken by the appellate Court along with the application for acceptance of additional evidence under Order 41 Rule 27 of the Code of Civil Procedure. In that view of the matter and without going into the merits as to whether the application under Order 41 Rule 27 of the Code of Civil Procedure was rightly rejected by the appellate Court as well as by the High Court, we set aside the order of the High Court as well as of the appellate Court rejecting the application under Order 41 Rule 27 of the Code of Civil Procedure and we direct that the appellate Court shall decide the pending appeal along with the application under Order 41 Rule 27 of the Code of Civil Procedure on merits within a period of three months from the date of supply of copy of this order to the appellate Court. The appeal is allowed to the extent indicated above. There will be no order as to costs.;