# Abujar Lari v. Rampati & Ors

- **Citation:** (2025) 8 ILRA 352
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-08-01
- **Case number:** Matters Under Article 227 No. 8236 of 2025
- **Bench:** Manish Kumar Nigam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/abujar-lari-v-rampati-ors-53683
- **Pages:** 13

## Headnote

Whether the provisions of Order XLI Rule 27 will
not apply in an appeal filed under Order XLIII
Rule 1(r) of C.P.C.

Head Notes
The Constitution of India, 1950-Article
227 - The Code of Civil Procedure, 1908-
Order XLI Rule 27, XLIII Rule 1(r) - No
impediment in accepting the documents at
appellate stage - Rules of procedure to
advance justice - Party may not be in a
position to produce the relevant material -
Refusal to entertain such a material
produced at the stage of an appeal would
certainly result in denial of justice-
Purpose of an Appeal is to see that the
party entitled to the relief should be
granted the relief .
8 All. Abujar Lari Vs. Rampati & Ors.
353
Held- Appellate Court will be justified in
interfering with the exercise of the discretionary
order if the said order was made ignoring
relevant facts - Party is entitled to place before
the appellate Court the relevant evidence to
bring to the notice of the Court the relevant
facts - The Court itself may act upon the
relevant evidence produced before it if such an
evidence clinchingly concludes the issue - If
there is any dispute about the material placed
before the Court or the material placed before
the Court will have to be appreciated with other
materials, already on record, it would be a
proper exercise of the appellate power to send
back the matter to the trial Court, so that the
trial Court may exercise its discretion on the
entire material on record including the fresh
material that is placed at the stage of appeal -
No impediment in accepting the documents at
appellate stage while hearing an appeal against
an injunction order - Petition dismissed.(Para
28, 30 & 31) ( E-15)

Case Law Cited
Sangram Singh versus Election Tribunal Kotah
AIR 1955 SCC425;Chinnammal and other versus
Arumugham (1990) 1 SCC 513;Ghanshyam Das
versus Union of India (1984) 3 SCC 46;Sukhveer
Singh versus Brijpal Singh (1997) 2 SCC
200;Salem Advocate Bar Association versus
Union of India reported in AIR 2005 SCC
3353;Dr. Chandra Deo Tyagi Vs. Additional
District Judge, Court No. 1, Meerut and others in
Writ C No. 34529 of 2006 decided on
10.07.2020;Mool Chand Vs. Trilok Chand and
others MANU/UP/0145/2001;Smt. Malti Devi and
Another Vs. State of U.P. and another in Matters
Under Article 227 No. 4312 of 2018 decided on
09.10.2018;Patel Enterprises Vs. M.P. Ahuja ILR
1992 KARNATAKA 3772 (MANU/KA/0467/1992)

List of Acts
The Constitution of India, 1950; The Code
of Civil Procedure, 1908

List of Keywords
Contingencies under which additional evidence
can be admitted; Additional evidence adduced
at
appellate
stage;
Rules
of
procedure
understood in a manner to advance Justice and
not to deny a person appropriate relief; No
impediment in accepting the documents at
appellate stage
Case Arising From
Order dated 15.07.2025 passed by Additional
District and Sessions Judge/ F.T.C. I, District
Deoria in Misc. Appeal No. 9 of 2025 allowing
the Application No. 29 C filed by appellant
before the court below to take on record the
documents annexed along with Paper No. 29-C
in appeal.

Appearances for Parties
Counsel for Petitioner :- Ashwani Kumar Pathak

## Text

_Characters 0–39,935 of 43,642. This is a partial read: ask again with offset=39935 for what follows._

352 INDIAN LAW REPORTS ALLAHABAD SERIES
of Circle Officer (C.O.), who shall be
personally accountable for overseeing the
service and execution of the process.

(vii) The S.S.P., Moradabad, shall
also ensure that the accused(s) do not
attempt to extend any undue influence,
threat, or coercion upon the complainant or
prosecution witnesses in furtherance of any
ulterior motive.

(viii) In view of the fact that one
of the co-accused served as Peshkar to the
learned District Judge, Moradabad for a
considerable period, and his two sons are
presently working as Peshkars in the same
District Court, with another son of one of
the accused being a practicing advocate in
the District Court, Moradabad, the trial
shall be conducted in-camera to ensure an
unbiased and fair proceeding.

13. In view of the aforesaid directions,
the instant writ petition stands allowed.

14. The Registrar (Compliance) is
directed to communicate a copy of this
order to the learned trial court concerned
through
the
learned
District
Judge,
Moradabad, and also to the Senior
Superintendent of Police, Moradabad, and
the
Joint
Director
(Prosecution),
Moradabad, for strict and immediate
compliance.

15. It is clarified that the directions
issued herein are based on the peculiar and
pressing facts and circumstances discussed
above and shall not be treated as a
precedent in other pending matters. This
court is fully conscious of the workload
faced by the trial courts. However, the fact
remains that the FIR in this case was
lodged in the year 2004 and the chargesheet was submitted within the same year.
Yet, to date, the trial has not progressed
even to the stage of framing of charges.
While certain delays may be justified under
exceptional circumstances, the State cannot
absolve itself from the constitutional
responsibility of ensuring speedy justice to
litigants
-
a
mandate
consistently
reiterated by the Hon'ble Supreme Court
and essential to the very foundation of the
rule of law.
----------
(2025) 8 ILRA 352
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.08.2025

BEFORE

THE HON'BLE MANISH KUMAR NIGAM, J.

Matters Under Article 227 No. 8236 of 2025

Abujar Lari ...Petitioner
Versus
Rampati & Ors. ...Respondents

Counsel for the Petitioner:
Ashwani Kumar Pathak

Counsel for the Respondents:

Issue for Consideration
Whether the provisions of Order XLI Rule 27 will
not apply in an appeal filed under Order XLIII
Rule 1(r) of C.P.C.

Head Notes
The Constitution of India, 1950-Article
227 - The Code of Civil Procedure, 1908-
Order XLI Rule 27, XLIII Rule 1(r) - No
impediment in accepting the documents at
appellate stage - Rules of procedure to
advance justice - Party may not be in a
position to produce the relevant material -
Refusal to entertain such a material
produced at the stage of an appeal would
certainly result in denial of justice-
Purpose of an Appeal is to see that the
party entitled to the relief should be
granted the relief .
8 All. Abujar Lari Vs. Rampati & Ors.
353
Held- Appellate Court will be justified in
interfering with the exercise of the discretionary
order if the said order was made ignoring
relevant facts - Party is entitled to place before
the appellate Court the relevant evidence to
bring to the notice of the Court the relevant
facts - The Court itself may act upon the
relevant evidence produced before it if such an
evidence clinchingly concludes the issue - If
there is any dispute about the material placed
before the Court or the material placed before
the Court will have to be appreciated with other
materials, already on record, it would be a
proper exercise of the appellate power to send
back the matter to the trial Court, so that the
trial Court may exercise its discretion on the
entire material on record including the fresh
material that is placed at the stage of appeal -
No impediment in accepting the documents at
appellate stage while hearing an appeal against
an injunction order - Petition dismissed.(Para
28, 30 & 31) ( E-15)

Case Law Cited
Sangram Singh versus Election Tribunal Kotah
AIR 1955 SCC425;Chinnammal and other versus
Arumugham (1990) 1 SCC 513;Ghanshyam Das
versus Union of India (1984) 3 SCC 46;Sukhveer
Singh versus Brijpal Singh (1997) 2 SCC
200;Salem Advocate Bar Association versus
Union of India reported in AIR 2005 SCC
3353;Dr. Chandra Deo Tyagi Vs. Additional
District Judge, Court No. 1, Meerut and others in
Writ C No. 34529 of 2006 decided on
10.07.2020;Mool Chand Vs. Trilok Chand and
others MANU/UP/0145/2001;Smt. Malti Devi and
Another Vs. State of U.P. and another in Matters
Under Article 227 No. 4312 of 2018 decided on
09.10.2018;Patel Enterprises Vs. M.P. Ahuja ILR
1992 KARNATAKA 3772 (MANU/KA/0467/1992)

List of Acts
The Constitution of India, 1950; The Code
of Civil Procedure, 1908

List of Keywords
Contingencies under which additional evidence
can be admitted; Additional evidence adduced
at
appellate
stage;
Rules
of
procedure
understood in a manner to advance Justice and
not to deny a person appropriate relief; No
impediment in accepting the documents at
appellate stage
Case Arising From
Order dated 15.07.2025 passed by Additional
District and Sessions Judge/ F.T.C. I, District
Deoria in Misc. Appeal No. 9 of 2025 allowing
the Application No. 29 C filed by appellant
before the court below to take on record the
documents annexed along with Paper No. 29-C
in appeal.

Appearances for Parties
Counsel for Petitioner :- Ashwani Kumar Pathak

(Delivered by Hon'ble Manish Kumar
Nigam, J.)

1. This petition has been filed
challenging the order dated 15.07.2025
passed by Additional District and Sessions
Judge/ F.T.C. I, District- Deoria in Misc.
Appeal No. 9 of 2025 allowing the
Application No. 29 C filed by appellant
before the court below to take on record the
documents annexed along with Paper No.
29-C in appeal.

2. Facts in brief are that plaintiffrespondents first set instituted original Suit
No. 54 of 2024 for the relief of permanent
prohibitory
injunction
restraining
the
defendants from interfering with the
possession of the plaintiff-respondents of
the property in dispute described in the
plaint. Along with the suit, plaintiffrespondents also filed an application for
interim injunction under Order XXXIX
Rule 1 and 2 C.P.C. being application No.
6C. The said application filed by the
plaintiff-respondents was rejected by the
trial court i.e. Civil Judge (Senior Division)
Court No. 18, Deoria by order dated
18.01.2025. Being aggrieved, plaintiffrespondents filed Misc. appeal No. 9 of
2025 under Order XLIII Rule 1(r) of
C.P.C. (Rampati and others Vs. Abujar Lari
and others). During the pendency of the
appeal,
plaintiff-respondents
filed
an
application (paper No. 29 C) dated
354 INDIAN LAW REPORTS ALLAHABAD SERIES
27.03.2025 along with an affidavit before
the lower appellate court in Misc. Appeal
No. 9 of 2025 under Order XLI Rule 27 for
filing
additional
evidence
in
the
miscellaneous appeal. The petitioner who
was the respondent in the appeal filed his
detailed objections to the application Paper
No. 29C filed by the plaintiff-respondents.
The lower appellate court by judgment and
order
dated
15.07.2025
allowed
the
application
filed
by
the
plaintiffrespondents under Order XLI Rule 27 of
C.P.C. and permitted the documents
annexed along with the application to be
taken on record in miscellaneous appeal.
Hence the present writ petition.

3. Contention of learned counsel for
the petitioner is that the order passed by the
lower appellate court is erroneous. The
provisions of Order XLI Rule 27 will not
apply in an appeal filed under Order XLIII
Rule 1(r) of C.P.C. It has been contended
by counsel for the petitioner that the
provisions of Order XLI applies only to the
appeals filed against the decree and not in
the appeals filed against the orders. It has
also been submitted by counsel for the
petitioner that even otherwise the Order
XLI Rule 27 of C.P.C. contemplates three
contingencies
under
which
additional
evidence can be admitted by the court of
appeal and in present case, no such
contingency as contemplated under Order
XLI Rule 27 of C.P.C. exists and therefore,
the lower appellate court has erred in law in
allowing the application Paper No. 29C.
Learned counsel for the petitioner further
contended that in interlocutory proceedings
for interim injunction, the trial court on the
material placed before it must be in
position to entertain a tentative opinion that
the plaintiff has shown prima facie case on
the date of the suit and that the appellate
court in such cases should examine only
two questions, one whether the opinion of
the trial court is fairly possible on the
material placed before it and two, whether
on that finding the trial court may be said to
have exercise its discretion properly in all
the circumstances of a case in granting or
refusing to grant injunction. There can be
no question of additional evidence being
adduced at the appellate stage.

4.
Per
contra,
learned
counsel
appearing for the respondents contended
that in view of sub-Rule (2) of Order
XLIII, the procedure prescribed under
Order XLI shall apply to appeals from
orders. It has been further submitted by
counsel for the plaintiff-respondents that
court below has rightly allowed the
application
filed
by
the
plaintiffrespondents
for
adducing
additional
evidence as the same was within the
parameters prescribed by Rule 27 of
Order XLI and no illegality has been
committed in allowing the application.

5.
Before
considering
the
rival
submissions it would be appropriate to look
into the provisions as contained in the
C.P.C. in this regard.

6. It is appropriate to reproduce
Sections 107, 108, 2(16), (18) and Order
XLIII Rule 1 (r), 2 of C.P.C. as under:-

"Section 107. Powers of appellate
Court-(1) Subject to such conditions and
limitations as may be prescribed, an
appellate Court shall have power-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them
for trial;
8 All. Abujar Lari Vs. Rampati & Ors.
355

(d) to take additional evidence or
to require such evidence to be taken.

(2) Subject as aforesaid, the
appellate Court shall have the same powers
and shall perform as nearly as may be the
same duties as are conferred and imposed
by this Code on Courts of original
jurisdiction in respect of suits instituted
therein."

"Section108.
Procedure
in
appeals from appellate decrees and orders
.-The provisions of this Part relating to
appeals from original decrees shall, so far
as may be, apply to appeals-

(a) from appellate decrees, and

(b) from orders made under this
Code or under any special or local law in
which
a different
procedure
is
not
provided."

"Section
2(16)
"prescribed"
means prescribed by rules;"

"Section 2(18) "rules" means
rules and forms contained in the First
Schedule or made under section 122 or
section 125;"

"Order 43 Rule 1(r) an order
under rule 1, rule 2 [rule 2A], rule 4 or
rule 10 of Order XXXIX;

"Order 43 Rule 2. Procedure. -
The rules of Order XLI shall apply, so far
as may be, to appeals from orders."

7. Section 104 C.P.C. provides for
filing appeal against the orders of the
nature as mentioned under clauses (ff),
(ffa), (g), (h), (i) as well as under Order
XLIII Rule 1 Clause (a) to (w). An appeal
against an order passed under Rules 1, 2,
2A, 4 or 10 of Order 39 is provided by
clause (r) of Order 43 Rule 1 C.P.C.

8. Section 107 C.P.C. provides that
subject to such conditions and limitations
as may be prescribed, an appellate court
shall have power, (a) to determine a case
finally; (b) to remand a case (c) to frame
issues and refer them for trial; (d) to take
additional evidence or to require such
evidence to be taken. Further, subject to the
above, the appellate court shall have the
same powers and shall perform as nearly as
may be the same duties as are conferred
and imposed by the Code of Civil
Procedure on courts of original jurisdiction
in respect of suits instituted before those
courts.

9. As such, Section 107(1) (d) C.P.C.
specifically provides that the appellate
court shall have power to take additional
evidence or to require such evidence to be
taken. The power, is, however, subject to
such conditions and limitations as may be
prescribed.

10.
Section
2(16)
C.P.C.,
the
definition clause, provides that in this Act,
unless there is anything repugnant in the
subject or context ''Prescribed' means,
prescribed by rules, and ''Rules' have been
defined under Clause (18) of Section 2,
which means rules and forms contained in
the first schedule or made under Section
122 or Section 125. The first schedule
contains
the
orders
and
the
rules
thereunder. Order XLI C.P.C. lays down
the procedure with respect to appeals from
original decrees. Its Rule 27, provides for
production of additional evidence in
appellate court, and according to this rule,
the parties to an appeal shall not be entitled
to produce additional evidence, whether
356 INDIAN LAW REPORTS ALLAHABAD SERIES
oral or documentary in the appellate court;
but if the condition as provided by Clause
(a), (aa), (b), (c) of Sub rule (1) are
satisfied the appellate court may allow such
evidence or document to be produced or
witness to be examined. Where additional
evidence is allowed to be produced, the
appellate court shall have to record the
reasons for its admission.

11. Section 108 C.P.C. provides for
the procedure to be followed in appeals
from appellate decrees or orders. As per
this Section, the provisions of Part VII
relating to appeals from original decrees
shall, so far as may be, apply to appeals (a)
from appellate decrees; and (b) from order
made under the Code or under any special
or local law, in which, a different procedure
is not provided. Section 107 C.P.C. which
provides for the powers of the appellate
court falls in part VII.

12. Order XLIII Rule 2 C.P.C. also
provides that the rules of Order XLI shall
apply, so far as may be, to appeals from
orders.

13.
The
Allahabad
High
Court
amendment, inserts "and Order 41-A" in
Rule 2 of Order 41 between the words "the
rules of order 41" and "shall apply". Order
41-A,
inserted
by
the
High
Court
Amendment, applies to appeals from
original decrees in the High Court. The
same shall apply to Appeals from Orders
filed in the High Court. The present case
relates to the appeal before the appellate
court, below, and not before the High
Court, and as such, Order XLI A is not
relevant for the present controversy.

14. From a conjoint and bare reading
of Section 108 & Order XLIII Rule 2
C.P.C. it is clear that Order XLI shall apply
to the appeals before the appellate court
arising from orders under Section 104 read
with Order XLIII Rule 1 C.P.C. or from
orders made under any special or local law
in which a different procedure is not
provided.

15. Order XLI Rule 27 of C.P.C.
provides for filing of additional evidence
before the appellate court by the appellant.
Rule 27 of Order XLI is quoted as under:

"27. Production of additional
evidence in Appellate Court.-(1) The
parties to an appeal shall not be entitled to
produce additional evidence, whether oral
or documentary, in the Appellate Court.
But if -

(a) the Court from whose decree
the appeal is preferred has refused to admit
evidence which ought to have been
admitted, or

1[(aa) the party seeking to
produce additional evidence, establishes
that notwithstanding the exercise of due
diligence, such evidence was not within his
knowledge or could not, after the exercise
of due diligence, be produced by him at the
time when the decree appealed against was
passed, or]

(b) the Appellate Court requires
any document to be produced or any
witness to be examined to enable it to
pronounce judgment, or for any other
substantial cause,

the Appellate Court may allow
such evidence or document to be produced,
or witness to be examined.

(2) Wherever additional evidence
is allowed to be produced by an Appellate
8 All. Abujar Lari Vs. Rampati & Ors.
357
Court, the Court shall record the reason
for its admission."

16. In the case of Sangram Singh
versus Election Tribunal Kotah AIR
1955 SCC425, the Hon'ble Supreme Court,
has held that the Code of Procedure must
be regarded as such. It is "procedure",
something designed to facilitate justice and
further its end. Not a penal indictment for
punishment and penalties. Not a thing
designed to trip people up. Too technical
construction of sections that leaves no
room
for
reasonable
elasticity
of
interpretation should therefore be guarded
against, provided always that justice is
done to both sides lest, the very means
designed for furtherance of justice. It has
also been held that our laws of procedure
are grounded on a principle of natural
justice. The relevant paragraph nos. 16 and
17 of the case of Sangram Singh (supra) are
being reproduced as under:-

"16. Now a code of procedure
must be regarded as such. It is ''procedure',
something designed to facilitate justice and
further its ends: not a penal enactment for
punishment and penalties; not a thing
designed to trip people up. Too technical a
construction of sections that leaves no
room
for
reasonable
elasticity
of
interpretation should therefore be guarded
against (provided always that justice is
done to ''both' sides) lest the very means
designed for the furtherance of justice be
used to frustrate it."

"17 Next, there must be ever
present to the mind the fact that our laws of
procedure are grounded on a principle of
natural justice which requires that men
should not be condemned unheard, that
decisions should not be reached behind
their backs, that proceedings that affect
their lives and property should not continue
in their absence and that they should not be
precluded from participating in them. Of
course, there must be exceptions and where
they are clearly defined they must be given
effect to. But taken by and large, and
subject to that proviso, our laws of
procedure should be construed, wherever
that is reasonably possible, in the light of
that principle."

17. In Chinnammal and other versus
Arumugham (1990) 1 SCC 513 the
Hon'ble Supreme Court has held that the
Code of Civil Procedure is body of
procedural laws designed to facilitate
justice and it should not be treated as
enactment providing for punishment and
penalties. The laws of procedure should be
so construed as to render justice wherever
reasonably possible. Paragraph nos. 16 and
17 of the aforesaid judgment are being
reproduced as under:-

"16.This is also the principle
underlying Section 144 of the CPC. It is the
duty of all the Courts as observed by the
Privy Council "as aggregate of those
tribunals" to take care that no act of the
court in the course of the whole of the
proceedings does an injury to the suitors in
the Court. The above passage was quoted
in the majority judgment of this Court in
A.R. Amtulay v. R.S. Nayak and Ors.,
MANU/SC/0002/1988MANU/SC/0002/198
8 : 1988CriLJ1661 . Mukherjee, J., as he
then was, after referring to the said
observation of Lord Cairns, said (at 672):

No man should suffer because of
the mistake of the Court. No man should
suffer a wrong by technical procedure of
irregularities. Rules or procedures are the
handmaids of justice and not the mistress of
the justice. Ex debito justitiae, we must do
358 INDIAN LAW REPORTS ALLAHABAD SERIES
justice to him. If a man has been wronged
so long as it lies within the human
machinery of administration of justice that
wrong must be remedied.

17. It is well to remember that the
CPC is a body of procedural law designed
to facilitate justice and it should not be
treated as an enactment providing for
punishments and penalties. The laws of
procedure should be so construed as to
render
justice
wherever
reasonably
possible. It is in our opinion, not
unreasonable to demand restitution from a
person who has purchased the property in
court auction being aware of the pending
appeal against the decree."

18. In the case of Ghanshyam Das
versus Union of India (1984) 3 SCC 46,
the Hon'ble Supreme Court has held that
our laws of procedure are based on the
principle that as far as possible no
proceedings in a court of law should be
allowed
to
be
defeated
on
their
technicalities. In the case of Sukhveer
Singh versus Brijpal Singh (1997) 2 SCC
200 it was held that procedure is the
handmaid to substantial rights.

19. In the case of Salem Advocate
Bar Association versus Union of India
reported in AIR 2005 SCC 3353, the
Hon'ble Supreme Court has held that the
rule and procedure are handmaid of justice
and not its mistress. It is relevant to
reproduce Paragraph 21 of the report as
under:-

"21. The use of the word ''shall'
in Order VII Rule 1 by itself is not
conclusive
to determine whether the
provision is mandatory or directory. We
have to ascertain the object which is
required to be served by this provision and
its design and context in which it is
enacted. The use of the word ''shall' is
ordinarily indicative of mandatory nature
of the provision but having regard to the
context in which it is used or having regard
to be construed as directory. The rule in
question has to advance the cause of justice
and not to defeat it. The rules of procedure
are made to advance the cause of justice
and not defeat it. Construction of the rule
or procedure which promotes justice and
prevents miscarriage has to be preferred.
The rules or procedure are hand-maid of
justice and not its mistress. In the present
context, the strict interpretation would
defeat justice."

20. This Court in case of Dr.
Chandra Deo Tyagi Vs. Additional
District Judge, Court No. 1, Meerut and
others in Writ C No. 34529 of 2006
decided on 10.07.2020 has held in
paragraph No. 44 as under:-

"44. Thus, it is settled in law that
the procedure is something designed to
facilitate justice. The procedural laws are
not treated as an enactment providing for
punishments or penalties. They are the
handmaid of justice and are to be
construed in a way to promote justice and
not to frustrate it. Any strict interpretation
which defeats justice is to be avoided in the
light of this object. The applicability of
Order 41 Rule 27 to appeals from orders is
to be considered to advance justice and the
expression ''so far as may be' is to be
construed liberally, keeping in view, the
object of Rule 27 which is to enable the
appellate court to pronounce a satisfactory
judgment, if in its judicial discretion the
proposed additional evidence is required
for pronouncing a satisfactory judgment.
The applicability of Order 41 Rule 27
C.P.C. cannot be restricted to the appeals
8 All. Abujar Lari Vs. Rampati & Ors.
359
from decrees. The appellate court has to
pronounce satisfactory judgment in appeal
from orders as well. If it requires the
additional
evidence
to
enable
it
to
pronounce a satisfactory judgment it has
power & jurisdiction to take additional
evidence in appeal from order as well, and
particularly when there is no interdict in
C.P.C. This Court therefore, holds that
Order 41 Rule 27 C.P.C. applies to the
Appeal filed under Section 108 r/w Order
43 Rule 1 (r) C.P.C."

21. This Court in case of Mool Chand
Vs. Trilok Chand and others reported in
MANU/UP/0145/2001 held that even if the
provisions of Order XLI Rule 27 are not
applicable in a revisional proceeding, the
revisional court is empowered to permit
additional evidence in the interest of
justice. Paragraph No. 10 of the judgment
in case of Mool Chand Vs. Trilok
Chand(supra) is quoted as under:-

"10. The settled legal position
therefore, is that provisions of Order XLI
Rule 27 C.P.C cannot be pressed into
service in a revision under Section 25 of
Provincial Small Cause Courts Act, but if it
appears
that
additional
evidence
is
essential for doing justice between the
parties, the revisional Court may entertain
additional evidence in the exercise of
inherent powers of the Court."

22. This Court in case of Smt. Malti
Devi and Another Vs. State of U.P. and
another in Matters Under Article 227 No.
4312 of 2018 decided on 09.10.2018 has
held as under:-

"The situation in the present case,
however, is otherwise. The present petition
arises out of an order passed by the First
Appellate Court in miscellaneous appeal
filed under Order 43 Rule 1 (r) C.P.C.
against the injunction order passed under
Order 39 Rule 1 and 2 C.P.C. At the stage
of injunction, there is no adjudication of
rights of the parties on evidence. The
injunction matter is decided on three
principles of prima facie case, balance of
convenience and irreparable loss so as to
protect the suit property and preserve the
same as it was on the date of bringing the
suit. The jurisdiction of the Appellate Court
while deciding the miscellaneous appeal is
limited to the extent to examine the validity
of order enumerated in Clause (r) of Order
43 Rule 1 C.P.C. The challenge is only
regarding the grant of interim protection
and, as such, the Appellate Court was not
exercising the jurisdiction or power of a
Court of regular appeal. Evidence have not
been led by the parties as yet in the pending
trial. The Trial Court had proceeded to
grant a temporary injunction in favour of
the plaintiff having recorded a finding of
her long possession over the disputed land
and directed the parties to maintain status
quo with regard to the disputed property.
In the miscellaneous appeal filed by the
respondents, the plaintiff sought to bring
the document i.e. extract of a Municipal
Register so as to prove that her name was
also recorded in the relevant records. The
question as to whether the plaintiff is owner
of the suit property or has a right to get
permanent
injunction
against
the
respondents/defendants
is
not
subject
matter of miscellaneous appeal. The
injunction though interferes with the
substantive rights of the parties but its life
is short. In appeal filed against the
injunction order, the Appellate Court has to
see the correctness of the injunction order.
In case any evidence is brought on record
in the shape of affidavit in miscellaneous
appeal, at the most, the same may throw
light on the right of the plaintiff to get
360 INDIAN LAW REPORTS ALLAHABAD SERIES
temporary injunction but it does not
determine the substantive right of the
parties, at that stage as both the parties
will still be having right to lead their
evidences.

In the opinion of the Court, in
such situation, strict compliance of Order
41 Rule 27 C.P.C. should not have been
invoked. No prejudice would be caused to
any of the parties by bringing the said
evidence on record as the same is only for
the purpose of injunction matter and not for
disposal of the suit. Being the Appellate
Court, it would not be necessary to remit
the matter for fresh consideration inasmuch
as, it can consider the said evidence by
giving other party an opportunity to rebut it
and further can decide the injunction
matter after making necessary enquiry
within the scope of Order 39 Rule 1 and 2
C.P.C. In all eventuality, in case the
evidence sought to be filed by the plaintiff
is allowed to be brought on record of the
miscellaneous appeal, the interest of justice
would be sub-served and not hindered.

In any case, three conditions as
laid down in Order 41 Rule 27 C.P.C. for
bringing the additional evidence on record
as discussed above, are not attracted in a
miscellaneous appeal which is filed against
the
temporary
injunction order.
The
question of due diligence does not arise
inasmuch as, the stage of bringing evidence
by the parties has yet not reached. There is
no trial nor there is any adjudication of
substantive rights of the parties at the stage
of temporary injunction.

For
the
aforesaid,
the
requirement of Order 41 Rule 27 C.P.C.
should not have been insisted by the First
Appellate Court in deciding the application
moved by the plaintiff to bring the
Municipal Assessment Extract on record of
miscellaneous appeal under Order 43 Rule
1 (r) C.P.C. The order impugned dated
24.5.2018 passed by the Additional District
Judge, Court No.7, Etawah is, therefore,
suffers from manifest illegality. The First
Appellate Court is directed to accept the
evidence brought by the plaintiff on record
vide application 16-Ga and decide the
miscellaneous
appeal
after
giving
opportunity to the appellants to rebut the
said document."

23. The view taken by this Court in
case of Smt. Malti Devi Vs. State of
U.P. (supra) is further fortified in view
of provisions of C.P.C. particularly Rule
14 of Order VII read with Order XIII
Rule 1 of C.P.C., which are quoted as
under:-

"14. Production of document on
which plaintiff sues or relies. (1) Where a
plaintiff sues upon a document or relies
upon document in his possession or power
in support of his claim, he shall enter such
documents in a list, and shall produce it in
Court when the plaint is presented by him,
and shall at the same time deliver the
document and a copy thereof, to be filed
with the plaint.

(2) Where any such document is
not in the possession or power of the
plaintiff, he shall, wherever possible, state
in whose possession or power it is.

(3) A document which ought to be
produced in Court by the plaintiff when the
plaint is presented, or to be entered in the
list to be added or annexed to the plaint but
is not produced or entered according, shall
not, without the leave of the Court, be
received in evidence on his behalf at the
hearing of the suit.
8 All. Abujar Lari Vs. Rampati & Ors.
361

(4) Nothing in the rule shall apply
to document produced for the crossexamination of the plaintiff's witnesses, or,
handed over to a witness merely to refresh
his memory."

Order XIII

1. Original documents to be
produced at or before the settlement of
issues--The parties or their pleader shall
produce,on or before the settlement of
issues, all the documentary evidence in
original where the copies thereof have been
filed along with plaint or written statement.

(2) The Court shall receive the
documents so produced :

Provided
that
they
are
accompanied by an accurate list thereof
prepared in such form as the High Court
directs.

(3) Nothing in sub-rule (1) shall
apply to documents, -

(a) produced for the crossexamination of the witness of the other
party, or

(b) handed over to a witness
merely to refresh his memory.]"

24. Normally, the application for interim
injunction is decided prior to filing of the
written statement and settlement of issues. As
per Rule 14 of Order VII, where the plaintiff
sues upon a document or relies upon a
document in his possession or power in
support of his claim, he shall enter such
documents in a list, and shall produce it in
Court when the plaint is presented by him,
and shall at the same time deliver the
document and a copy thereof, to be filed with
the plaint. Under sub-Rule (3) of Rule 14 of
Order VII, the document which ought to be
produced by the plaintiff along with the plaint
or to be entered into the list to be added or
annexed to the plaint but not produced or
entered accordingly, can be filed and received
in evidence with the leave of the court at the
hearing of the suit. Order XIII Rule 1 also
provides that original documents can be
produced at or before the settlement of issues,
copy of which has been filed along with the
plaint or written statement. In most of the
cases, the application for interim injunction/
appeal against an order passed on interim
injunction, are decided prior to the stage of
leading evidence in the suit and the
application for interim relief is normally,
decided on the basis of affidavits and the
documents filed by the parties.

25. In case of Patel Enterprises Vs.
M.P.
Ahuja
reported
in
ILR
1992
KARNATAKA
3772
(MANU/KA/0467/1992),
the
Karnataka
High Court held that the party is entitled to
place before the appellate Court the relevant
evidence to bring to the notice of the Court
the relevant facts. In an appropriate case, the
Court itself may act upon the relevant
evidence produced before it if such an
evidence clinchingly concludes the issue.
However, if there is any dispute about the
material placed before the Court or the
material placed before the Court will have to
be appreciated with other materials, already
on record, it would be a proper exercise of the
appellate power to send back the matter to the
trial Court, so that the trial Court may
exercise its discretion on the entire material
on record including the fresh material that is
placed at the stage of appeal.

26. So far as contention of counsel for
the petitioner that the appellate court
should confine to the material placed
362 INDIAN LAW REPORTS ALLAHABAD SERIES
before the trial court while deciding the
interim injunction as only thing has to be
seen by the appellate court as to whether
the opinion of trial court is fairly possible
in the material placed before it and whether
on that finding the court below may be said
to have exercise its discretion properly.
Therefore, there is no question of adducing
evidence at the appellate stage is erroneous.

27. The principle behind the above
propositions seems to be that in the appeal
against an order of temporary injunction,
the appellate court has to confine its
attention to the material placed before the
trial Court and the nature of the order being
discretionary, normally the appellate court
could not interfere with such an order. If
the discretion is exercised unreasonably
and not in a judicial manner, only then the
appellate court should interfere with the
exercise of the discretion of the trial Court.

28. It is correct that appellate court
normally decides the correctness of the
decision rendered by the trial Court and the
normal rule is to confine the attention to the
material produced by the parties before the
original Court. But, these are all Rules of
procedure and will have to be understood in
a manner so as to advance Justice and not
to deny a person from getting an
appropriate relief. There may be several
instances where due to unforeseen reasons,
a party may not be in a position to produce
the relevant material, in such a situation,
refusal to entertain such a material
produced at the stage of an appeal would
certainly result in denial of Justice to the
party entitled to the relief. The appeal
against an order of temporary injunction is
governed by the provisions of Order XLIII
of the Code. Rule 2 states that "the rules of
Order XLI shall apply so far as may be to
appeals from orders". In other words, the
provisions of Order XLI, which includes
provision governing the production of
additional evidence, could be attracted to
the appeals filed under Order XLIII Rule 1
so far as may be. The words 'so far as may
be' vest in the Appellate Court an
appropriate
power
to
consider
the
entertaining of an application for additional
evidence. The facts and circumstances of a
particular case will have to be examined, so
that the Court can find out whether
ultimately the discretion exercised by the
trial Court should be upheld or not. The
purpose of an Appeal is to see that the party
entitled to the relief should be granted the
relief.

29. Ordinarily, an application for grant
of interim injunction is decided on the basis
of affidavits and the material documents
produced by the parties without waiting for
evidence to come in regular manner
therefore, any relevant document which
may have been left out from production
initially
can
be
brought
on
record
subsequently with the leave of the court
provided, it is found to be material for the
purpose of effective adjudication of the
injunction matter. Such material can also be
produced
in
a
miscellaneous
appeal
preferred against the order of the trial court
refusing or allowing interim injunction.

30. From the above observations, it is
clear that the appellate Court will be
justified in interfering with the exercise of
the discretionary order if the said order was
made ignoring relevant facts. The relevant
facts may be before the trial Court or for
reasons beyond the control of the party,
relevant facts may not be placed before the
trial Court. The real question is whether
those facts justified the making of a
particular discretionary order. It is in these
circumstances it has to be held that the
8 All. Abujar Lari Vs. Rampati & Ors.
363
party is entitled to place before the
appellate Court the relevant evidence to
bring to the notice of the Court the relevant
facts. In an appropriate case, the Court
itself may act upon the relevant evidence
produced before it if such an evidence
clinchingly concludes the issue. However,
if there is any dispute about the material
placed before the Court or the material
placed before the Court will have to be
appreciated with other materials, already on
record, it would be a proper exercise of the
appellate power to send back the matter to
the trial Court, so that the trial Court may
exercise its discretion on the entire material
on record including the fresh material that
is placed at the stage of appeal.

31. According to Order VII Rule 14,
the plaintiff and the defendant have to file
the documents or at least list of documents
along with the plaint and written statement,
but in case, the same is not filed along with
the plaint, the same can be filed with the
leave of the Court. Normally, hearing of an
application for interim injunction or an
appeal arising out from an order deciding
the injunction application, preceeds the
stage of leading evidence in the suit,
therefore, in my view there is no
impediment in accepting the documents at
appellate stage while hearing an appeal
against an injunction order.

32. Strict adherence to the provisions
of Order XLI Rule 27 is also not required
as the stage of leading evidence is normally
not over at the time of consideration of
application of interim injunction or an
appeal arising from the order passed on
injunction application. Further when the
documents sought to be filed during
miscellaneous appeal can be filed before
the trial court as the stage of filing evidence
which has yet not arrived, the same can
also be filed during miscellaneous appeal.
Rule
27
of
Order
XLI
of
C.P.C.
contemplates the situations when for
reasons mentioned in Rule 27, a party is not
able to file the evidence/ documents during
the
pendency
of
suit
and
if
such
contingency exists the appellate court is
empowered to permit the party to lead
evidence even after decision of the suit.
Even in cases where the contingencies
mentioned in sub-Rule (1)(a)(aa) of Rule
27 are absent, the appellate court can
permit the evidence to be filed, in case, the
appellate court requires the document to
enable the court to pronounce judgment or
for any other substantial cause. When such
power can be exercised by appellate court
even after decision of the suit, in my view
there is no impediment for appellate court
to exercise such power during pendency of
the suit as there is no prohibition in the
C.P.C. for the same. My view is also in
consonance with the law laid down by this
Court in case of Smt. Malti Devi Vs. State
of U.P. and another (supra).

33. In the present case also, some of
the documents sought by the appellant to be
produced before the appellate court were
the documents which are in existence prior
to decision of injunction application and
some of the documents came in existence
after the decision of the interim injunction.

34. The court below has also recorded
a finding that whether those documents are
relevant or irrelevant will be considered at
the time of deciding the appeal on merits.

35.