Oral Order

1. By way of the present petition filed under Articles 226 and 227 of the Constitution of India, petitioner has prayed for following reliefs:

          "15A) Be pleased to admit and allow this Special Civil Application;

          B) Be pleased to issue the writ of certiorari/mandamus or any other appropriate writ, order or direction and be pleased to quash and set aside the order (Impugned) dated 2.3.2024 passed below Exh.7 in Regular Civil Appeal No.5 of 2021 by the Learned 3rd Additional Sessions Judge, Banaskantha at Deodar, (Ann:A) by holding and declaring the same as unjust, improper, arbitrary, against the principles laid down by this Honourable Court as well as Honourable Supreme Court of India, and passed without proper application of judicious mind, in the interest of justice.

          C) Pending admission, hearing and final disposal of this petition, be pleased to stay the execution, implementation and operation of the order impugned dated 2.3.2024 passed below Exh.7 in Regular Civil Appeal No.5 of 2021 by the Learned 3rd Additional Sessions Judge, Banaskantha at Deodar (Ann:A), in the interest of justice; D) Be pleased to grant such other and further relief that may be deemed fit and proper in the facts and circumstances of the case.

2. Heard learned advocate Mr.M.B. Rana for the petitioner and learned AGP for respondent - State.

3. At the outset, learned advocate for the petitioner has contended that the suit was filed by present petitioner seeking relief of declaration and permanent injunction, which was decreed by learned Principal Senior Civil Judge, Deodar District: Banaskantha, on 27.01.2021. During the pendency of the suit, present respondent-original defendant appeared and contested the suit by filing written statement and producing documentary evidence. The decree came to be passed against the present respondent, wherein Regular Appeal came to be filed by the Government before the learned District Court at Deodar. In the said Appeal, an application at Ex.7 came to be filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (For short 'CPC'). 3.1 It is further contended that the said application does not satisfy the test laid down under Order XLI Rule 27 of CPC. The learned District Court, while granting the application, has observed that despite filing Written Statement and leading oral deposition, for reasons best known to the Government, the documentary evidence could not be produced.

          Therefore, an application under Order XLI Rule 27(1) (b) of the CPC was allowed.

          3.2 Learned advocate for petitioner has relied upon the decision of the Hon'ble Apex Court in the case of Iqbal Ahmed Vs. Abdul Shukoor reported in 2025(0) AIJEL-SC 75775 and contended that the Hon'ble Apex Court has categorically held that it would be first necessary to examine the pleadings of party. The Court also must examine as to whether additional evidence sought to be led was supported by pleadings of defendant in written statement. In absence of necessary pleadings, permitting a party to lead additional evidence would result is an unnecessary exercise and such evidence, if led, would be of no consequences. Except above, no other submissions are made by learned advocate for petitioner.

4. Per contra, learned AGP has supported the impugned order and contended that the documents which are sought to be produced in the nature of revenue record and relevant revenue record, could not be produced during the trial. It is further contended that the proposed documents are necessary for the learned District Court for pronouncement of judgment and also for a substantial cause, additional evidence are required to be brought on record. Except above, no other submissions are made by learned AGP.

5. I have considered the submissions canvassed by learned advocates for the respective parties and perused the record and proceedings. An application Ex.7 has been filed by respondent herein seeking production of additional evidence by invoking the provisions of Order XLI Rule 27 of the CPC. The said application, which is filed by respondent, inter alia, stating that the land in question is a Government land and it has been allotted for different purposes. It is also stated in the application that, the revenue entries have been mutated to that effect and those revenue entries and revenue record are sought to be produced by way of additional evidence.

It appears from the impugned order that the learned District Court, while entertaining the application, has not taken into consideration the defence raised in the written statement as well as has not appreciated the settled proposition of law which lays down that when an application under Order XLI Rule 27 of the CPC is under consideration, the Court has to first of all examine whether the additional evidence sought to be produced is supported by the pleadings and whether such evidence is necessary for the Appellate Court to enable it to pronounce the judgment.

6. Upon perusal of the impugned order, there is no due satisfaction recorded by the learned District Court and whether the test which has been laid down in Order XLI Rule 27(1)(b) of the CPC are satisfied. The only reason which has been assigned by learned District Court in granting the application is that the appellant-State could not produce the required documents at the trial stage. It has also been observed in the impugned order that the documents which are sought to be produced where in custody of appellant- State. If the documents were in possession of the appellants-State, the appellant must establish that even though after exercising due diligence, the evidence proposed to be produced was not within the knowledge and could not be produced at the time when the decree appeal was passed.

7. It is not the case of the appellant-State that the learned Trial Court had refused to admit the evidence which is sought to be produced at the appellate stage. The Hon'ble Apex Court in the case of Iqbal Ahmed (supra), in paragraph Nos.8 and 9 has observed as hereunder:-

          "8. In our opinion, before undertaking the exercise of considering whether a party is entitled to lead additional evidence under Order XLI Rule 27(1) of the Code, it would be first necessary to examine the pleadings of such party to gather if the case sought to be set up is pleaded so as to support the additional evidence that is proposed to be brought on record. In absence of necessary pleadings in that regard, permitting a party to lead additional evidence would result in an unnecessary exercise and such evidence, if led, would be of no consequence as it may not be permissible to take such evidence into consideration. Useful reference in this regard can be made to the decisions in Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103 and Union of India v. Ibrahim Uddin, (2012) 8 SCC 148. Thus, besides the requirements prescribed by Order XLI Rule 27(1) of the Code being fulfilled, it would also be necessary for the Appellate Court to consider the pleadings of the party seeking to lead such additional evidence. It is only thereafter on being satisfied that a case as contemplated by the provisions of Order XLI Rule 27(1) of the Code has been made out that such permission can be granted. In absence of such exercise being undertaken by the High Court in the present case, we are of the view that it committed an error in allowing the application moved by the defendant for leading additional evidence.

          9. As we have found that the application for leading additional evidence has been considered by the Appellate Court without examining the aspect as to whether the additional evidence proposed to be led was in consonance with the pleadings of the defendant and whether such case had been set up by him coupled with the fact that the additional evidence taken on record has weighed with it while reversing the decree, the matter requires reconsideration by the High Court. Since we find that the matter requires re-consideration at the hands of the High Court afresh, we have not gone into the aspect of delay in deciding the appeal by the High Court as was urged on behalf of the appellants.

8. In view of the above proposition of law as laid down by the Hon'ble Apex Court as well as the provisions contained under Order XLI Rule 27 of the CPC, the present petition deserves to be allowed and the same is allowed. The order dated 02.03.2024 passed below Ex.7 in Regular Civil Appeal No.5 of 2021 by the learned 3rd Additional Sessions Judge, Banaskantha at Deodar, is hereby quashed and set aside. And the matter is remanded back to the learned 3rd Additional Sessions Judge, Banaskantha, Deodar, for fresh adjudication of Application Ex.7 on merits.

9. The learned District Court shall decide the application below Ex.7 afresh after following the due guidelines laid down by the Hon'ble Apex Court in the case of Iqbal Ahmed (supra). The exercise of deciding the application below Ex.7 be undertaken within a period of 3 months from the date of receipt of this order. The learned District Court shall decide the application strictly on merits and as per provisions of law and without being influenced by the observations made hereinabove. The parties shall give full co- operation to the learned District Court for expeditious disposal of application and shall not seek unnecessary adjournment/s.

10. With these observations and directions, the present petition is allowed and stands disposed of accordingly.

Direct service is permitted.