# Imaduddeen & others v. Najib Ullah and others

- **Citation:** (2013) 1 ILRA 31
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-12-18
- **Bench:** Devendra Kumar Upadhyaya
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/imaduddeen-others-v-najib-ullah-and-others-42414
- **Pages:** 6

## Headnote

Civil Procedure Code Order 41 Rule 27Additional evidence at appellate stageon ground certain document amounts to
admission on part of respondent-and
also could enable to pronounce the
judgement by arriving at just decisionrejected by the appellate court without
advertising the above fact-held finding
by the court below wholly anonymousvitiated.

Held: Para-18

In view of what has been held by Hon'ble
Apex Court in the case of K. R. Mohan
Reddy (supra), it is concluded that the
submission made by the learned counsel
for the petitioners carries weight. As
discussed above, though the application
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
moved by the petitioners before the
learned appellate court below contained
two grounds, however, no finding has
been returned by the court below as
regards
the
issue
raised
by
the
petitioners in their application that since
the documents sought to be furnished as
evidence contained certain admission on
the part of the respondents, as such, in
case the said evidence is permitted to be
taken on record, the same would enable
the court to pronounce the judgment by
arriving at a just decision. In absence of
the aforesaid finding, learned appellate
court below has clearly erred in law
which renders the impugned order dated
05.04.1995 vitiated.
Casea law discussed:
[2010 (28) LCD 1345]; [2003 (21) LCD 219];
[2001 (44) ALR 737]; [(2007) 14 SCC 257]

## Text

1 All] Imaduddeen & others V. Najib Ullah and others
31
period provided in Section 15 of the Act i
.e 3 years. All the above relevant
provisions,
including
the
amended
provisions of the Act and the Rules have
been elaborately considered by this Court
in Hari Ram ( supra)"

15. While applying the ratio of the
aforesaid verdicts of Hon'ble Apex Court
referred to above, in the present matter, it
is apparent that the incident is of 19.5.1997
and according to earlier opinion of the
Chief Medical Officer which was given on
18.12.1997, the age of the revisionist was
opined to be about 17 years. Hence it is
clear that at the time of incident, the
revisionist was below 18 years. According
to the amended Act and in view of the
aforesaid verdicts, the applicant is entitled
to the benefit of the age of juvenility given
in the new Act as in view of Sections 2(k)
and 2(l) " juvenile" or " child" means a
person who has not completed eighteenth
year of age and " juvenile in conflict with
law" means a juvenile who is alleged to
have committed an offence and has not
completed eighteenth year of age as on the
date of commission of such offence.

16. The learned court below should
have considered the application of the
revisionist for declaring him juvenile in its
proper perspective in accordance with the
provisions of the amended Act but instead
vide the impugned order dated 9.2.2007, it
rejected the same only on the basis that his
earlier application had already been
rejected on 23.12.1997. Having not done
so, the order impugned passed by the
learned court below is erroneous and is not
sustainable in the eye of law.

17. In view of the aforesaid
considerations, this revision is allowed.
The impugned order dated 9.2.2007 is
hereby set aside and the matter is
remanded back to the learned trial court to
decide the matter of juvenility of the
revisionist afresh in accordance with law,
in the light of the observations made above
and
thereafter
proceed
further
in
accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.12.2012

BEFORE
THE HON'BLE DEVENDRA KUMAR
UPADHYAYA, J.

MISC. SINGLE No. - 925 of 1995

Imaduddeen & others
 ...Petitioner
Versus
Najib Ullah and others ...Respondents

Counsel for the Petitioner:
Sri Shafiq Mirza

Counsel for the Respondents:
C S C.
Sri Mohd Arif Khan
Sri Perwaiz Wahab Khan
Sri Syed Wajid Irfan

Civil Procedure Code Order 41 Rule 27Additional evidence at appellate stageon ground certain document amounts to
admission on part of respondent-and
also could enable to pronounce the
judgement by arriving at just decisionrejected by the appellate court without
advertising the above fact-held finding
by the court below wholly anonymousvitiated.

Held: Para-18

In view of what has been held by Hon'ble
Apex Court in the case of K. R. Mohan
Reddy (supra), it is concluded that the
submission made by the learned counsel
for the petitioners carries weight. As
discussed above, though the application
32 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
moved by the petitioners before the
learned appellate court below contained
two grounds, however, no finding has
been returned by the court below as
regards
the
issue
raised
by
the
petitioners in their application that since
the documents sought to be furnished as
evidence contained certain admission on
the part of the respondents, as such, in
case the said evidence is permitted to be
taken on record, the same would enable
the court to pronounce the judgment by
arriving at a just decision. In absence of
the aforesaid finding, learned appellate
court below has clearly erred in law
which renders the impugned order dated
05.04.1995 vitiated.
Casea law discussed:
[2010 (28) LCD 1345]; [2003 (21) LCD 219];
[2001 (44) ALR 737]; [(2007) 14 SCC 257]

(Delivered by Hon'ble Devendra Kumar
Upadhyaya, J.

1. This writ petition assails the validity
of an order dated 05.04.1995, whereby the
application moved by the petitioners, who
were appellants before the learned appellate
court below, under Order 41 Rule 27 of the
Code of Civil Procedure for adducing
additional evidence has been rejected.

2. Heard Sri S. A. Jamal, Advocate
holding brief of Sri Shafiq Mirza, learned
counsel for the petitioners and Sri Mohd.
Arif Khan, Senior Advocate, assisted by Sri
Mohd. Moinuddin Khan and Sri Mohd.
Aslam Khan, Advocates for respondents no.
1 to 3.

3. The facts which are relevant for the
purposes of resolving the dispute engaging
attention of this Court in the instant writ
petition are that a Suit bearing No. 124 of
1981 was filed before the learned trial court
by the respondents wherein the petitioners
were the defendants. The suit was filed with
the prayer for decree for demolition of the
construction raised by the petitioners.
Subsequently another suit was filed by the
petitioner no.6 against the respondents no.1
to 3 which was registered as Regular Suit
No.134 of 1981 wherein the decree for
permanent injunction was sought for
restraining the defendants i.e. respondents
no. 1 to 3 in the instant writ petition from
raising any construction on the land in
dispute.

4. Out of the aforesaid two regular
suits, Suit No.134 of 1981 was later on
dismissed in default on 13.08.1985 whereas
the Suit No.124 of 1981 was decreed by the
trial court by means of judgment and order
dated 28.09.1991.

5. Being aggrieved against the decree
passed in Suit No.124 of 1981, an appeal
was preferred by the petitioners before the
learned appellate court below. During
pendency of appeal, an application was
preferred before the learned appellate court
below by the petitioners on 24.03.1995
praying therein that certain documents
annexed with the application may be taken
on record. The said application was moved
by the petitioners invoking the provision of
Order 41 Rule 27 of the Code of Civil
Procedure. The application was, however,
rejected by the learned appellate court below
by means of order dated 05.04.1995 which is
under challenge in the instant writ petition.

6. The sole contention of the learned
counsel appearing for the petitioners is that
the impugned order dated 05.04.1995 passed
by the learned appellate court below is
erroneous for the reason that contrary to the
provision of Order 41 Rule 27(1)(b) of the
Code of Civil Procedure, no finding has been
returned by the learned appellate court below
on the issue as to whether the documents
which were sought to be filed along with
1 All] Imaduddeen & others V. Najib Ullah and others
33
application moved by the petitioners were
required by the appellate court to enable it to
pronounce the judgment. Sri Jamal, learned
counsel for the petitioners citing two
judgments reported in [2010 (28) LCD
1345]; Shalimar Chemical Works Ltd. vs.
Surendra Oil & Dal Mills (Refineries) and
others and [2003 (21)LCD 219]; M/s.
Gupta National Radios and Electric
House vs. Sagarmal Arora and another,
has very emphatically submitted that in
absence of finding recorded by the learned
appellate court below in terms of the
provision of Order 41 Rule 27(1)(b) of the
Code of Civil Procedure, the impugned order
passed by the learned appellate court below
cannot be permitted to be sustained.

7. Strongly opposing the arguments
raised by the learned counsel for the
petitioners, Sri Mohd. Arif Khan, learned
Senior Advocate has submitted that in the
wake of distinct finding by the learned
appellate court below that evidence, which
was sought to be adduced by means of
application moved by the petitioners before
the learned appellate court below, had all
along been in the knowledge of petitioners
since in the year 1981 itself and, as such, at
this belated stage in the year 1995 appellants
cannot be permitted to adduce the evidence,
hence, there is no illegality or irregularity of
any kind which can be seen by this Court in
the order passed by the learned appellate
court below. In his support, he has strongly
relied upon the judgment of Apex Court
reported
in
[2001
(44)
ALR
737];
N.Kamalam (dead) and another vs.
Ayyasamy and another. Sri Mohd. Arif
Khan, learned Senior Advocate citing
paragraph 17 and 18 of the aforesaid
judgment of Hon'ble Apex Court has
submitted that since in the instant case also
the application to adduce additional evidence
was moved after a very long time and since
there is a finding by the court below that
petitioners were in the knowledge of
evidence which they wanted to adduce at the
appellate stage since the very beginning,
hence the application has rightly been
rejected by the court below. He has further
drawn attention of this Court to para 18 of
the judgment of the Apex Court in the case
of N. Kamalam (dead) and another
(supra) and has submitted strenuously that at
the belated stage no fresh evidence can be led
by the petitioners keeping in view the fact
that the evidence which they wanted to lead
by way of filing application in March, 1995
has all along been available to them and in
their knowledge.

8.

Having
given
thoughtful
consideration to the arguments advanced by
the learned counsel appearing for the
respective parties and also going through the
material available on record, it is clear that
application moved by the petitioners before
the learned appellate court below for
adducing additional evidence contained two
grounds, namely, (1) the documents which
were sought to be furnished before the
appellate court contained admission of the
respondents, therefore, the said documents
would facilitate the appellate court to
pronounce the judgment in the matter; and
(2) the documents which were sought to be
furnished were not in the knowledge of the
petitioners.

9. Admittedly, the application moved
by the petitioners contained the aforesaid two
grounds which is clear from a perusal of
Annexure-1 appended to the writ petition,
which is a true copy of the application
moved before the learned appellate court
below for adducing additional evidence. A
bare reading of the said application
establishes that a specific plea was taken by
the petitioners while moving the application
34 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
for adducing the additional evidence that
since the documents sought to be filed
contained admission of the respondents, as
such, the evidence was such that it would
enable the appellate court to pronounce the
judgment.

10. The other ground, of course, was
that the said documents were in the
knowledge of the petitioners.

11. From a bare perusal of the
impugned order dated 05.04.1995, it is
abundantly clear that though the learned
appellate court below has given a finding to
the effect that documents which were sought
to be filed as additional evidence before the
appellate court below have all along been in
the knowledge of the petitioners since 1981,
however, the court below has not recorded
any finding on the other issue raised and the
ground taken by the petitioners in their
application to the effect that since the
evidence being sought to be adduced
contains admission on the part of the
respondents, as such, this would facilitate the
appellate court to arrive at a just decision and
to pronounce the judgment accordingly.

12. So far as the submission made by
Sri Mohd. Arif Khan, learned Senior
Advocate in respect of broad principles
emanating from the provision of Order 41
Rule 27 of the Code of Civil Procedure to the
effect that this provision should be applied
very sparingly and only in case ingredients
given in sub rule 1 of Rule 27 are fulfilled is
concerned, there cannot be any quarrel to this
legal proposition. However, what needs to be
seen is as to whether despite raising a
specific plea and taking specific ground that
the documents sought to be furnished by
moving application under Order 41 Rule 27
of the Code of Civil Procedure before the
appellate court were such which would
enable the appellate court to arrive at a just
decision, the court below ought to have given
specific finding on the said issue or not.
Further, in case no such finding has been
given then as to whether it will vitiate the
impugned order dated 05.04.1995.

13. The provision of Order 41 Rule 27
of the Code of Civil Procedure reads as
follows:

"Order 41 Rule 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

[(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
Court, the Court shall record the reason for
its admission."
1 All] Imaduddeen & others V. Najib Ullah and others
35

14. There is no doubt that the provision
of Order 41 Rule 27 of the Code of Civil
Procedure should be permitted to be invoked
not so very often but only in case application
so moved under the said provision fulfills the
basic ingredients given in Clauses (a), (aa) &
(b) of sub-rule 1 of Rule 27, Order 41. A
party making an application under Order 41
Rule 27 can take either all the grounds
enumerated in sub-rule (1) of Rule 27 or can
take two of the three grounds enumerated
therein or it can take only one of the three
grounds envisaged in Rule 27(1) of the Code
of Civil Procedure. There is also no doubt as
to the legal proposition that for exercising the
authority to permit a party to an appeal to
produce additional evidence, it is the
discretion of the appellate court which has to
be exercised by it. However, the discretion so
vested in the appellate court has to be
exercised judiciously.

15. It is also noteworthy that conditions
precedent for application of clause (aa) are
different from those of clause (b). In case
clause (aa) is to be applied in a particular
case, it would be seen by the court concerned
that conditions precedent mentioned in
clause (aa) are fulfilled. In case a party takes
recourse to clause (b) to sub-rule (1) of Rule
27 of Order 41 of the Code of Civil
Procedure, then it is for the appellate court to
consider the evidence on record and then
give a finding as to whether additional
evidence which is sought to be adduced will
be necessary for arriving at a just decision.

16. To emphasize that in case a party,
by moving application under Order 41 Rule
27 of the Code of Civil Procedure, takes a
plea as envisaged in sub clause (b) of sub
rule (1) of Rule 27 of Order 41 of the Code
of Civil Procedure then finding needs to be
returned on the said issue, regard may be had
to the decision of the Apex Court in the case
of K. R. Mohan Reddy vs. Net Work INC,
represented through M.D, reported in
[(2007) 14 SCC 257]. To appreciate the
nature of discretion vested in the appellate
court to allow a party to lead additional
evidence for the purposes of facilitating
pronouncement of the judgment in a just
manner, paragraph 17 of the judgment of the
Apex Court in the case of K. R. Mohan
Reddy (supra) is worth noticing, which runs
as under:

" 17. It is now a trite law that the
conditions precedent for application of
clause (aa) of sub-rule (1) of Rule 27 of
Order 41 is different from that of clause (b).
In the event the former is to be applied, it
would be for the applicant to show that the
ingredients
or
conditions
precedent
mentioned therein are satisfied. On the
other hand if clause (b) to sub-rule (1) of
Rule 27 of Order 41 CPC is to be taken
recourse to, the appellate court is bound to
consider the entire evidence on record and
come to an independent finding for arriving
at a just decision; adduction of additional
evidence as has been prayed by the
appellant was necessary. The fact that the
High Court failed to do so, in our opinion,
amounts
to
misdirection
in
law.
Furthermore, if the High Court is correct in
its view that the respondent-plaintiff had
proceeded on the basis that the suit is
entirely based on a cheque, wherefor, it was
not necessary for it to file the books of
accounts before the trial court, finding
contrary thereto could not have been
arrived at that the same was in fact required
to be proved so as to enable the appellate
court to arrive at a just conclusion".

(Emphasis supplied by the court)

17. In the aforesaid quoted judgment,
Hon'ble Apex Court has clearly stated that
36 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
the appellate court is bound to consider the
entire evidence on record and come to an
independent finding that adduction of
additional evidence is necessary for arriving
at a just decision.

18. In view of what has been held by
Hon'ble Apex Court in the case of K. R.
Mohan Reddy (supra), it is concluded that
the submission made by the learned counsel
for the petitioners carries weight. As
discussed above, though the application
moved by the petitioners before the learned
appellate court below contained two grounds,
however, no finding has been returned by the
court below as regards the issue raised by the
petitioners in their application that since the
documents sought to be furnished as
evidence contained certain admission on the
part of the respondents, as such, in case the
said evidence is permitted to be taken on
record, the same would enable the court to
pronounce the judgment by arriving at a just
decision. In absence of the aforesaid finding,
learned appellate court below has clearly
erred in law which renders the impugned
order dated 05.04.1995 vitiated.

19. In the result, the writ petition
deserves to be allowed. Accordingly, it is
allowed.
The
impugned
order
dated
05.04.1995, passed by the Additional Civil
Judge, Bahraich in Civil Appeal No.34 of
1991;
Imamuddeen
and
others
vs.
Mujibullah and others is hereby quashed.
Further, a direction is issued to the learned
appellate court below to decide the
application Ka-48 moved by the petitioners
afresh keeping in view the observations
made hereinabove in the judgment.

20. Sri Mohd. Arif Khan, learned
Senior
Advocate
appearing
for
the
respondents has also submitted that the
application moved by the petitioners seeking
production of the additional evidence was
nothing but a dilatory measure adopted by
the petitioners. Keeping in view the fact that
the appeal is pending since 1991, the learned
appellate court below is also directed to
decide the entire appeal itself within a period
of three months from the date a certified
copy of this judgment is produced before it.

21. In the circumstances of the case,
however, there will be no order as to cost.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2012

BEFORE
THE HON'BLE PRADEEP KUMAR SINGH
BAGHEL, J.

Civil Misc. Writ Petition No. 1647 of 2008

Raj Kumar Singh

 ...Petitioner
Versus
District Inspector of Schools and others

 ...Respondents

Counsel for the Petitioner:
Sri Ravi Agrawal
Sri Pankaj Lal
Sri P.K. Chaurasia
Sri G.K. Dwivedi

Counsel for the Respondents:
C.S.C.
Sri Gireesh Chandra Dwivedi

Constitution
of
India,
Article
226payment of salary-dismissal of petitioner
set-a-side-subject to outcome of criminal
proceeding-even
after
acquittal
in
criminal case-management decided not
to
initiate
disciplinary
proceedingconsidering charges to be non serious in
nature-inspite of reinstatement could
not join as the person being appointed
during intervening period got interim
order concealing material facts-D.I.O.S.
Also not bring correct position inspite of