2025:HHC:26857 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.543 of 2023 Decided on: 07.08.2025 Sh. Ram Saran & another … Petitioners Versus Sh. Suresh Kumar & another … Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge. Whether approved for reporting?1 Yes ____________________________________________________ _ For the petitioners : Mr. Sudhir Thakur, Senior Advocate, with Mr. Karun Negi, Advocate. For the respondents : Mr. P.S. Goverdhan, Senior Advocate, with Mr. Rakesh Thakur, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have, inter alia, prayed for the following reliefs:- “It is therefore, humbly prayed that the present petition may kindly be allowed the impugned order dated 25.07.2023 (Annexure P-1) may be quashed and set aside and CMA No. 293-S/6 of 2023 (Annexure P-2) in Civil appeal no. 45-S/13 of 2014 may kindly be allowed in interest of justice and the documents sought to be placed on record may kindly be ordered to be placed on record by way of additional evidence in the interest of justice and fair play. It is further humbly prayed that in case this Hon'ble Court comes to the conclusion that the present petition is not maintainable under article 227 of the Constitution of India, in that eventuality the present petition may be 1 Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:26857 treated as revision petition under section 115 of CPC” 2. The petitioners are aggrieved by the order passed by learned Appellate Court, in terms whereof, an application filed under Order XLI, Rule 27 of the Civil Procedure Code stands rejected by the learned Appellate Court. The appeal is still pending before the learned Appellate Court. 3. Learned Senior Counsel for the petitioners submitted that without going into the contents of the impugned order as to what weighed with the learned Appellate Court while rejecting the application, the impugned order per se is perverse, for the reason that the learned Appellate Court while dismissing the application erred in not appreciating that in terms of the law laid down by Hon’ble Supreme Court of India such an application could not have been disposed of during the pendency of the appeal and it ought to have been considered only at the time of final hearing of the matter, because an application under Order XLI, Rule 27 of the Civil Procedure Code is to be considered at the time of hearing of the appeal on merit, so as to find, whether the documents/evidence sought to be adduced have any relevance bearing on the issues involved. Learned Senior Counsel submitted that this is in terms of the law declared by the Hon’ble Supreme Court of India and he has referred to the judgments of the Hon’ble Supreme Court in Union of India Versus Ibrahim Uddin and another, 2012 (8) SCC 148. 3 2025:HHC:26857 4. On the other hand, learned Senior Counsel for the petitioners/defendants also again referred to the judgment of Hon’ble Supreme Court in Satish Chand Surana Vs. Raj Kumar Meshram, Civil Appeal No.7446 of 2021, decided on 06.12.2021, and submitted that such an application can be taken up for consideration by the learned Appellate Court at any stage and it is only if the learned Appellate Court finds substance therein, then it is kept pending so as to be considered at the stage of final adjudication. 5. I have heard learned counsel for the parties and have carefully gone through the order under challenge as well as the judgments of the Hon’ble Supreme Court. 6. It is not in dispute that an application filed under Order XLI, Rule 27 of the Civil Procedure Code by the petitioners stood dismissed by the learned Appellate Court during the pendency of the appeal. The Hon’ble Supreme Court in Union of India Versus Ibrahim Uddin and another (supra) has been pleased to hold that an application filed under Order XLI, Rule 27 of the Civil Procedure Code is to be considered at the time of hearing of the appeal on merit so as to find whether the documents/ evidence sought to be adduced has any relevance/ bearing on the issues involved. The Hon’ble Supreme Court further held that the admissibility of additional evidence does not depend upon the relevancy of the issue 4 2025:HHC:26857 on hand or on the fact, whether the applicant had an opportunity to adduce such evidence at an earlier stage or not, but depends upon whether or not the learned Appellate Court requires the evidence sought to be adduced, to enable it to pronounce the judgment or for any other substantial cause. The true test, therefore, is whether the learned Appellate Court is able to pronounce the judgment on the basis of the material present before it without taking into consideration additional evidence sought to be adduced or not. In the said judgment the Hon’ble Supreme Court further held that the application for taking additional evidence on record at any appellate stage, even if filed during the pendency of the appeal, it 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. The Hon’ble Supreme Court further held that in case the application for taking additional evidence on record has been considered and allowed prior to 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, remain in-consequential, in- executable and is liable to be ignored. 7. In Satish Chand Surana Versus Raj Kumar Meshram 5 2025:HHC:26857 (supra), Hon’ble Supreme Court has been pleased to hold that if the appellant makes out a case for allowing the application, the material produced alongwith the application has to be considered at the time of final disposal of the appeal in accordance with law. Para-9 of the said judgment is re-produced herein below:- “(9) It is also necessary to observe here that the application for permission to file additional evidence should contain the list of documents giving full particulars thereof and copies sought to be filed as additional evidence should be served on the other side. However, the High Court cannot completely ignore the application filed by the appellant and pronounce the judgment. If the appellant makes out a case for allowing the application, the material produced along with the application has to be considered at the time of final disposal of the appeal in accordance with law.” 8. Thus, in terms of the judgment of Hon’ble Supreme Court in Union of India Versus Ibrahim Uddin and another (supra), an application can only be decided at the stage of hearing of the final appeal in light of the reasoning spelled out in the said judgment and in Satish Chand Surana Versus Raj Kumar Meshram (supra), the Hon’ble Supreme Court has been pleased to hold that the material produced alongwith an application has to be considered at the time of final disposal of the appeal in accordance with law. 9. In the considered view of this Court, there is no conflict 6 2025:HHC:26857 between the said two judgments of the Hon’ble Supreme Court. The crux of these judgments is that additional evidence intended to be produced can only be taken into consideration at the time of final disposal of the appeal in accordance with law. 10. That being the legal position, obviously prudence demands that the application should be taken up for consideration only at the stage of final disposal of the appeal. If this is not done, then an order passed thereupon has to be ignored in terms of the judgment of the Hon’ble Supreme Court in Union of India Versus Ibrahim Uddin and another (supra), which does not serve any purpose and rather defeats the purpose of the provisions of Order XLI, Rule 27 of the Civil Procedure Code. This extremely important aspect of the matter has been ignored by the learned Court below while disposing of the application filed by the petitioners under Order XLI, Rule 27 of the Civil Procedure Code during the pendency of the appeal itself. Learned Appellate Court ought to have had kept the application pending and the same should have been taken into consideration only at the time of final disposal of the appeal in accordance with law in terms of the judgments of Hon’ble Supreme Court cited hereinabove. 11. Therefore, this petition is allowed and order dated 25.07.2023 (Annexure P-1), passed by the learned Appellate Court is set aside and the application filed under Order XLI, Rule 27 of the 7 2025:HHC:26857 Civil Procedure Code is ordered to be revived with the observation that the same shall be taken into consideration by the learned Appellate Court at the time of final adjudication of the appeal. It is clarified that this Court has not made any observation as far as the merits of the application filed under Order XLI, Rule 27 of the Civil Procedure Code are concerned. 12. The petition stands disposed of in above terms. Interim order, if any, stands vacated. Pending miscellaneous application(s), if any also stand disposed of accordingly. (Ajay Mohan Goel) Judge August 07, 2025 (Rishi)