# Ishtiyak Ali v. Shiv Raj

- **Citation:** (2024) 11 ILRA 273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-23
- **Case number:** Second Appeal No. 227 of 2005
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishtiyak-ali-v-shiv-raj-51005
- **Pages:** 12

## Headnote

Law-The
Code
of
Civil
Procedure,1908-Order 41 - Rule 27Additional evidence can be filed in the
appellate court in three contingencies. The
first of which is that where the court from
whose decree the appeal is preferred has
refused to admit evidence which ought to
have been admitted; secondly 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
be produced before passing of the decree
and thirdly if 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 additional evidence
sought to be produced by the defendant is
required to be taken on record for the just
decision of the case and pronouncement of
the judgment because it will have to be
considered as to whether the suit was filed
by material concealment of fact and the
decree was obtained by playing fraud on
the court which can be considered at any
stage, if comes to light and the suit can be
dismissed on this ground alone because no
relief can be granted in such case and as
to whether the suit could have been filed
on
behalf
of
the
Custodian,
Enemy
Property
without
his
permission
or
authority.

Application under Order 41 Rule 27 CPC
allowed. (E-15)

List of Cases cited:

## Text

11 All. Ishtiyak Ali Vs. Shiv Raj
273
payment
of
Rs.200/-,
therefore,
the
question of refund also does not arise.

41. The Second Appeal No.112 of
2023 is allowed with cost. The impugned
judgment and decree dated 10.11.1987
passed in Regular Suit No.111 of 1984
(Shiv Nayak (dead) and Others Vs. Shiv
Dularey (dead) and others) by the First
Additional Civil Judge, Raibareli and
judgment and decree dated 27.02.2023
passed in Civil Appeal No.11 of 1991 (Shiv
Dularey (Dead) and Others Vs. Shiv Nayak
(Dead) and Others) by the First Additional
District Judge, Raibareli are hereby set
aside.
----------
(2024) 11 ILRA 273
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.11.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 227 of 2005

Ishtiyak Ali ...Appellant
Versus
Shiv Raj ...Respondent

Counsel for the Appellant:
Mohd. Arif Khan, Anurag Kr. Srivastav, M
Muneshwar Sultan, Sridhar Awasthi

Counsel for the Respondents:
Pankaj Kumar Srivastava, S.C. Srivastava

Civil
Law-The
Code
of
Civil
Procedure,1908-Order 41 - Rule 27Additional evidence can be filed in the
appellate court in three contingencies. The
first of which is that where the court from
whose decree the appeal is preferred has
refused to admit evidence which ought to
have been admitted; secondly 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
be produced before passing of the decree
and thirdly if 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 additional evidence
sought to be produced by the defendant is
required to be taken on record for the just
decision of the case and pronouncement of
the judgment because it will have to be
considered as to whether the suit was filed
by material concealment of fact and the
decree was obtained by playing fraud on
the court which can be considered at any
stage, if comes to light and the suit can be
dismissed on this ground alone because no
relief can be granted in such case and as
to whether the suit could have been filed
on
behalf
of
the
Custodian,
Enemy
Property
without
his
permission
or
authority.

Application under Order 41 Rule 27 CPC
allowed. (E-15)

List of Cases cited:

1.
North
Eastern
Railway
Administration,
Gorakhpur Vs Bhagwan Das (D) LRS; AIR 2008
Supreme Court 2139

2. Uttaradi Mutt Vs Raghavendra Swamy Mutt;
(2018) 10 SCC 484

3. H.S.Goutham Vs Rama Murthy & anr.; (2021)
5 SCC 241

4. Satish Kumar Gupta & ors. Vs St. of Har. &
ors.; (2017) 4 SCC 760

5. Sanjay Kumar Singh Vs St. of Jharkhand;
(2022) 7 SCC 247

6. A. Andisamy Chettiar Vs A.Subburaj Chettiar;
(2015) 17 SCC 713

7. Jagdish Prasad Patel (Dead) through legal
representatives & anr.Vs Shivnath & ors.;
(2019) 6 SCC 82

8. Union of India Vs Ibrahim Uddin & anr.;
(2012)8 SCC 148
274 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Nattha Singh & ors. Vs The Financial
Commissioner, Taxation, Punjab & ors.; (1976)
3 SCC 28

10. Basant Kumar Mehrotra Vs Ram Laxman
Janki Virajman Mandir; 2018 (36) LCD 1094

11. Jai Narain Pandey and after him Ram Bilas
Pandey Vs Lallan Tiwari & ors.; 1972 SCC
OnLine All 258.

(Delivered by Hon'ble Rajnish Kumar, J)

1. Heard, Shri Sudeep Seth, learned
Senior Advocate assisted by Shri Sridhar
Awasthi, learned counsel for the plaintiffappellant and Shri Pankaj Srivastava,
learned
counsel
for
the
defendantrespondent.

2. The instant Second Appeal has
been filed for setting aside the judgment
and decree dated 26.02.2005 passed in
Civil Appeal No.33 of 2004; Shiv Raj
Versus Ishtiyak Ali by the Additional
District Judge, Court No.1, Unnao, by
means of which the appeal has been
allowed with costs and the judgment and
decree dated 30.04.2004 passed by the trial
court has been set aside. The further prayer
has been made for decreeing the suit with
costs.

3. Learned counsel for the
plaintiff-appellant
submitted
that
the
plaintiff-appellant had filed a suit for
permanent
injunction.
He
is
the
owner/Bhumidhar and in possession of
Araji No.1390, Gram-Rasoolpur Balia,
Pargana-Mohan,
Tehsil-Hasanganj,
District-Unnao. The said land is in two
parts Ka and Kha. Part Ka is in the
ownership of the plaintiff-appellant and his
co-sharers, but since they were living out
therefore they were not impleaded in the
suit and the suit was filed for their benefit
also. He is the exclusive owner of part Ka.
The plaintiff-appellant had placed on
record Khasra and Khatauni and other
records, which are sufficient to prove the
ownership of the plaintiff-appellant and
identifiability of the land in dispute,
therefore, even if the area was not disclosed
by the plaintiff-appellant, it would not have
made any difference. Admittedly the
defendant-respondent is the owner and in
possession of the adjacent plot No.1386,
therefore, he has no concern with the Plot
No.1390. The suit was decreed by the trial
court after considering the pleadings,
evidence and material on record. The
defendant-respondent had filed an appeal.
The appeal has wrongly and illegally been
allowed without considering the pleadings,
evidence and material on record and the
provisions of Order 7 Rule 3 of Civil
Procedure
Code,
1908
(here-in-after
referred as CPC), therefore this Second
appeal is liable to be allowed and the suit
filed by the plaintiff-appellant is liable to
be decreed.

4. Per contra, learned counsel for
the defendant-respondent submitted that the
learned trial court had failed to consider
that the plaintiff-appellant had not given the
area in possession of the plaintiff-appellant
because the defendant-respondent is in
possession of some portion of Gata
No.1390, whereas it was the duty of the
plaintiff-appellant to get the property
identified, which was not done and the
learned trial court had allowed the suit
without considering it and evidence on
record. The learned lower appellate court
has rightly and in accordance with law
allowed the appeal because the area in
ownership and possession of the plaintiffappellant and the co-sharers has not been
given and the same was not got identified.
He further submitted that the suit filed by
11 All. Ishtiyak Ali Vs. Shiv Raj
275
the plaintiff-appellant suffers from material
concealment of fact because two of the
sisters of the plaintiff-appellant, namely,
Smt. Azmat Ahsan and Kudrat Ahsan alias
Nadrtula Momina and co-sharers and
having 1/8 share each in entire plots had
gone to Pakistan, settled there and acquired
citizenship of Pakistan near about 1961-62.
Therefore, their share vested in Custodian
of Enemy Property of India in the year
1966 as enemy property, but this fact was
not disclosed. The defendant-respondent,
after coming to know about it and obtaining
the relevant documents has filed an
application under Order 41 Rule 27(1) (aa)
of CPC (C.M. Application No.06/2022) for
taking those on record as additional
evidence.

5. He further submitted that the
defendant-respondent
has
filed
the
Notification dated 10th of September 1965,
according to which the immovable property
in India belonging to or held by or
managed on behalf of all Pakistan National
vested in the Custodian of Enemy Property
for India with immediate effect and the
details of the properties of Azmat Ahsan
and Kudrat Ahsan alias Nadrtula Momina
which have vested in the Custodian of
Enemy Property as annexures No.A-1 and
A-2 to the aforesaid application. He further
submitted that coming to know about the
same it has been recorded in the revenue
records also and in proof thereof the
Khatauni of 1428-1433 Fasali have been
annexed with the application. He further
submitted that the Assistant Custodian of
Enemy Property, Lucknow has directed to
the District Magistrate/Ex Officio Deputy
Custodian (Enemy Property), DistrictUnnao (U.P.) by means of letter dated
30.01.2019 to take the custody of the
property of Pakistani citizens, namely,
Azmat Ahsan and Nudrat Ahsan @
Nudarutul Momina daughters of Late
Ehtiram Ali situated in Gram -Rasoolpur
Vakiya, Pargana-Mohan, Tehsil-Hasanganj,
District-Unnao. He also submitted that after
coming to know about the aforesaid orders
the plaintiff-appellant filed a suit for
partition before the Sub Divisional Officer,
Hasanganj, District-Unnao impleading his
aforesaid
sisters,
who
had
become
Pakistani Citizens as respondent no.1 and 2
and also on behalf of one Bibi Farhat
Ahsan, who had already died. However the
suit has been withdrawn after filing of the
aforesaid application by the defendantrespondent as disclosed by the plaintiffappellant in the supplementary affidavit,
but the aforesaid conduct indicates that the
plaintiff-appellant
has
neither
only
concealed the material fact in these
proceedings but is also in the habit of
concealing the material facts and obtaining
the decrees, orders by concealment of
material facts and misleading the court.
Thus the submission is that the documents
filed by the defendant-respondent may be
taken on record and the appeal and the suit
may be dismissed on the ground of material
concealment of facts.

6. Learned counsel for the
plaintiff-appellant
submitted
that
the
application under Order 41 Rule 27 CPC
filed
by
the
defendant-respondent
is
misconceived and not tenable and liable to
be dismissed. The application for additional
evidence can be allowed only if the
additional evidence sought to be adduced
removes the cloud of doubt over the case
and the evidence has a direct and important
bearing on the main issue in the suit and
interest of justice clearly renders it
imperative that it may be allowed and
permitted to be taken on record. The
application cannot be allowed to fill in
lacunae or to patch up weak points in the
276 INDIAN LAW REPORTS ALLAHABAD SERIES
case. He further submitted that the
defendant-respondent has not succeeded on
the issue of non-joinder of necessary
parties i.e. co-owners, but no appeal has
been filed challenging the same and now he
wants to raise this issue through application
under Order 41 Rule 27 CPC, therefore it is
misconceived and not tenable. The present
Second Appeal is to be decided on the basis
of the pleadings in the plaint, the written
statement and evidence on record regarding
description of land in dispute, on which two
substantial questions of law have been
formulated and this court cannot travel
beyond that. The additional evidence sought
to be brought on record has no concern with
the substantial questions of law formulated
in this appeal. The substantial questions of
law formulated in this appeal do not require
the additional evidence sought to be
produced by the defendant-respondent. Even
otherwise the defendant-respondent has
failed to establish that the evidence, which is
sought to be brought on record was not
within the knowledge or could not be
produced by him despite exercise of due
diligence before the trial court. That too
when the documents sought to be placed on
record by way of additional evidence are
public documents and were in public
domain. Thus the submission is that the
application under Order 41 Rule 27 CPC is
liable to be dismissed and the appeal is
liable to be decided on the substantial
questions of law formulated by this court.

7.

I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

8. This appeal was admitted on the
following substantial questions of law:-

(1) Whether the description
of the land in dispute was necessary
when the appellant had mentioned
the plot number? And
(2) Whether the appellate
court is justified in allowing the
respondent's appeal and dismissing
the appellant-plaintiff's suit for
permanent injunction on the ground
of unidentifiability of the land in
dispute?

9. The Suit for permanent
injunction was filed by the plaintiffappellant claiming title and possession over
Gata No.1390 as Bhumidhar, situated at
Gram Rasoolpur Valiya, Pargana-Mohan,
Tehsil-Hasanganj, District-Unnao. The said
plot is alleged to have two parts 1390-Ka
and 1390-Kha, out of which part Ka is in
the ownership of the plaintiff-appellant
alongwith other co-owners, therefore, it
was filed for the benefit of those co-owners
also. He is the exclusive owner of part Kha.
The suit was contested by filing the written
statement denying the averments made in
the plaint. Thereafter issues were framed
and the evidence was adduced by the
parties. The suit was decreed by the trial
court. Being aggrieved the appeal was filed
by the defendant-respondent, which has
been allowed on the ground that the
plaintiff-appellant has failed to show the
area of the plot, therefore, the land in
dispute is unidentifiable. Hence this Second
appeal has been filed.

10. The defendant-respondent has
filed an application under Order 41 Rule 27
CPC on the ground that the suit was filed
by the plaintiff-appellant on behalf of the
co-sharers also in regard to the part of the
land in dispute, alleging that the disputed
plot No.1390 of Khata No.22 is in two
parts i.e. 1390-Ka and 1390-Kha, situated
in
village-Rasoolpur
Valiya,
ParganaMohan, Tehsil-Hasanganj, District-Unnao.
11 All. Ishtiyak Ali Vs. Shiv Raj
277
There are 8 co-bhumidhars/co-sharers in
Khata No.1390-Ka including appellant, two
brothers and five daughters of Ehhatram
Ali. Out of the said co-owners, two
daughters, namely, Smt.Azmat Ahsan and
Kudrat Ahsan alia Nadrtula Momina having
1/8 share each in the entire plots including
said plot of Khata No.22 have gone to and
settled in Pakistan in the year 1961-62 and
acquired citizenship of Pakistan.

11. The Government of India
issued Notification No.12/2/65-E dated
10.09.1965 in exercise of Power conferred
by Sub Rule(1) of Rule 133-V of the
Defence of India Rules, 1962 by which all
immovable property in India belonging to
or held by or managed on behalf of all
Pakistani Nationals shall vest in the
Custodian of Enemy property of India with
immediate effect. In pursuance of the said
Notification the 1/8 share out of immovable
property of entire plots of Khata No.22
including plot no.1390-Ka of Smt. Ajmat
Ahsan and Kudrat Ahsan alias Nadrtula
Momina have been declared as enemy
property and vested in the Custodian of
Enemy Property of India in the year 1966
because they had acquired the citizenship
of Pakistan. Accordingly the properties as
disclosed from Sl.No.18 to 88 in the list of
immovable enemy property contained in
annexure no.A-2 had vested in the
Custodian, but without disclosing it, the
names of all the co-sharers were got
recorded in the revenue records. The
plaintiff-appellant
alongwith
co-sharers
illegally sold the shares in the enemy
properties by concealing the fact of enemy
property and on coming to know, the office
of Assistant Custodian, Enemy Property
wrote a letter dated 30.01.2019 to the
District
Magistrate/Ex-Officio
Deputy
Custodian informing him that the properties
and shares of Smt. Ajmat Ahsan and Kudrat
Ahsan alias Nadrtula Momina have been
declared as Enemy properties in the year
1966 and accordingly it had vested in the
Custodian and it remains in its custody
under Section 5 of the Enemy Property Act,
1968, therefore, the control of the same
may be taken and in the revenue records
Custodian Enemy Property against their
names be got recorded. In pursuance
thereof the necessary incorporation has
been made in the revenue records after the
order of the competent authority.

12. A complaint was made by one
of the relatives, namely, Ehtesham Imtiyaz
Ali of the plaintiff-appellant for making an
inquiry and cancellation of sale deeds and
ensuing the possession of the Enemy
properties on 20.02.2021. In pursuance
thereof a letter dated 17.03.2021 was
written by the Assistant Custodian, Enemy
Property to the District Magistrate/ExOfficio
Deputy
Custodian
(Enemy
Property), district-Unnao for making an
inquiry in the matter and protection of the
enemy properties of the said Pakistani
nationals. The plaintiff-appellant filed a suit
for partition under Section 116 of the U.P.
Revenue Code 2006 alongwith co-sharers
arraying the aforesaid Smt. Ajmat Ahsan
and Kudrat Ahsan alias Nadrtula Momina
as respondents no.1 and 2 concealing the
fact that they became Pakistani citizens,
whereas they have died in the year 2009
and 2010. Therefore, in pursuance of the
aforesaid complaint made by the relative of
the
plaintiff-appellant,
a
letter
dated
17.03.2021 was written to the aforesaid
District Magistrate for effective Pairvi of
the case in the case pending before the Sub
Divisional Officer. It has also been
disclosed by the defendant-respondent that
the applicant no.3 Ifthar Ali alias Ikitiya Ali
son of Munshi Akhtar Ali in the said suit
has also died, therefore the suit was on
278 INDIAN LAW REPORTS ALLAHABAD SERIES
behalf of a dead person also. A perusal of
the copy of the partition suit annexed as
Annexure no.7 to the application indicates
that it has been admitted in paragraph 2 of
the application that the respondents no.1
and 2 i.e. the aforesaid two sisters of the
plaintiff-appellant have 1/8 share each.

13. The application under Order 41
Rule 27 CPC has been contested by the
plaintiff-appellant by filing an objection
alleging
therein
that
the
defendantrespondent has failed to establish that the
said
evidence
was
not
within
his
knowledge or could not be produced by
him despite due diligence before the trial
court because the alleged documents were
in public domain and it cannot be said by
defendant-respondent that they were not
within their knowledge at the time when
the suit was decreed. It has also been
alleged that the averments of the defendantrespondent that 1/8 share each in plot
no.1390-Ka vested in the Custodian,
Enemy Property came to his knowledge on
the complaint of Ehtesham Imtiyaz Ali is
only a patch up work to fill the lacunae. It has
also been alleged that the plea of non-joinder
of necessary parties has already been dealt
with by the trial court as well as by the first
appellate court and decided against the
defendant-respondent,
therefore, now he
cannot rake up the issue before this court
because he has not filed any appeal
challenging the same. The judgment in this
Second Appeal is to be pronounced on the
basis of issues involved in the appeal, on
which two substantial questions of law have
been formulated and the additional evidence
sought to be brought on record does not have
the direct and important bearing on the main
issue in the suit and the application is liable to
be dismissed. However no specific reply to the
aforesaid pleas of the defendant-respondent in
regard to settlement of the aforesaid two sisters
in Pakistan, their death and enemy properties
etc. have not been given. 14. The reply to the
objection has been filed. Thereafter a
supplementary affidavit has been filed by the
plaintiff-appellant annexing copy of the order
dated 12.10.2022 passed by the Sub Divisional
Officer, Hasanganj, Unnao, by means of which
the suit filed by the plaintiff-appellant and
others under Section 116 of the U.P. Revenue
Code 2006 has been allowed to be withdrawn
on an application moved by him on
21.09.2022.

15. The suit filed by the plaintiffappellant was decreed by means of judgment
and decree dated 30.04.2024. The appeal was
allowed by the Lower Appellate Court by
means of judgment and decree dated
26.02.2005. The documents annexed by the
defendant-respondent
alongwith
his
application under Order 41 Rule 27 CPC
except annexures no.1 and 2, which are of
subsequent date, could not have been in the
knowledge of the defendant-respondent. So far
as annexure No.2 is concerned, the date and
time on it is 05.09.2022 at 11.30 A.M., which
may be date of printing. The annexure no.1 is
the Notification dated 12 September 1965
issued in General, which does not disclose the
specific properties, therefore, the contention of
learned counsel for the plaintiff-appellant that
the defendant-respondent has failed to show
the due diligence for obtaining the said
documents is misconceived and not tenable.

16. Order 41 Rule 27 CPC
provides for production of additional
evidence in appellate court, which is
extracted here-in-below:-

"27.
Production
of
additional evidence in Appellate
Court
(1) The parties to an
appeal shall not be entitled to
11 All. Ishtiyak Ali Vs. Shiv Raj
279
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 Court, the Court
shall record the reason for its
admission."

17. According to the aforesaid
provision additional evidence can be filed in
the appellate court in three contingencies. The
first of which is that where the court from
whose decree the appeal is preferred has
refused to admit evidence which ought to
have been admitted; secondly 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 be
produced before passing of the decree and
thirdly if 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. Therefore
this court has to see as to whether the party
seeking to produce additional evidence was
diligent in producing the evidence or not or
whether any document is required for
pronouncement of judgment or for any other
substantial cause the said evidence is required
and there is sufficient cause for taking the
additional evidence on record.

18. The Hon'ble Supreme Court, in
the case of North Eastern Railway
Administration,
Gorakhpur
Versus
Bhagwan Das (D) LRS; AIR 2008
Supreme Court 2139, has held that in any
event, had the court found the additional
documents, sought to be admitted, necessary
to pronounce the judgment in the appeal, in a
more satisfactory manner, it would have
allowed the application and, if not, the
application would have been dismissed. It has
also been observed that it is true that a
judgment or decree by the first court or by the
highest court obtained by playing fraud on
the court is a nullity and non est in the eyes of
law.

19. The Hon'ble Supreme Court, in
the
case
of
Uttaradi
Mutt
Versus
Raghavendra Swamy Mutt; (2018) 10
SCC 484, provided the procedure to be
followed by the appellate court after granting
permission to produce the additional evidence
is granted. There are two options available to
the appellate court. First it may record the
evidence itself by permitting the parties to
produce evidence before it as per Rule 27 of
Order 41 CPC or direct the court from whose
decree the appeal under consideration has
arisen, to do so.

20. The Hon'ble Supreme Court,
in the case of H.S.Goutham Versus Rama
280 INDIAN LAW REPORTS ALLAHABAD SERIES
Murthy and another; (2021) 5 SCC 241,
has held that unless and until the procedure
under Order 41 Rule 27, 28 and 29 is
followed, the parties to the appeal cannot
be permitted to lead additional evidence
and/or the appellate court is not justified to
direct the court from whose decree the
appeal is preferred or any other subordinate
court, to take such evidence and to send it
when taken to the appellate court.

21. The Hon'ble Supreme Court,
in the case of Satish Kumar Gupta and
others Versus State of Haryana and
others; (2017) 4 SCC 760, has held that
the additional evidence cannot be permitted
to fill in the lacunae or to patch up the
weak points in the case.

22. The Hon'ble Supreme Court,
in the case of Sanjay Kumar Singh
Versus State of Jharkhand; (2022) 7 SCC
247, has held that where the additional
evidence is sought to be adduced removes
the cloud of doubt over the case and the
evidence has a direct and important bearing
on the main issue in the suit and interest of
justice clearly renders it imperative that it
may be allowed to be permitted on record,
such application may be allowed.

23. The Hon'ble Supreme Court, in
the case of A. Andisamy Chettiar Versus
A.Subburaj Chettiar; (2015) 17 SCC 713,
has held that admissibility of additional
evidence does not depend upon the relevancy
to the issue on hand, or on the fact, whether
the applicant had an opportunity for adducing
such evidence at an earlier stage or not, but it
depends upon whether or not the appellate
court requires the evidence sought to be
adduced to enable it to pronounce judgment
or for any other substantial cause. It has
further been observed that the true test,
therefore is, whether the appellate court is
able to pronounce judgment on the materials
before it without taking into consideration the
additional evidence sought to be adduced.

24. The Hon'ble Supreme Court, in
the case of Jagdish Prasad Patel (Dead)
through legal representatives and another
Versus Shivnath and others; (2019) 6 SCC
82, has held that the application under Order
41 Rule 27 CPC for production of additional
evidence, whether oral or documentary,
cannot be allowed if the appellant was not
diligent in producing the relevant documents
in the lower court. However, in the interest of
justice and when satisfactory reasons are
given, the court can receive additional
documents.

25. The Hon'ble Supreme Court, in
the case of Union of India Versus Ibrahim
Uddin and another; (2012)8 SCC 148, has
held that where the additional evidence
sought to be adduced removes the cloud of
doubt over the case and the evidence has a
direct and important bearing on the main
issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to
be permitted on record, such application may
be allowed. The Hon'ble Supreme Court has
also held that the provision does not apply,
when on the basis of the evidence on record,
the
appellate
court
can
pronounce
a
satisfactory judgment. The matter is entirely
within the discretion of the court and is to be
used sparingly. The words "for any other
substantial cause" must be read with the word
"requires" in the beginning of the sentence,
so that it is only where, for any other
substantial cause, the appellate court requires
additional evidence. The relevant paragraphs
36, 38, 41, 48, 49 and 51 are extracted herein-below:-

" 36. The general
principle
is
that
the
11 All. Ishtiyak Ali Vs. Shiv Raj
281
appellate court should not
travel outside the record of
the lower court and cannot
take
any
evidence
in
appeal. However, as an
exception, Order 41 Rule
27
CPC
enables
the
appellate court to take
additional
evidence
in
exceptional circumstances.
The appellate court may
permit additional evidence
only
and
only
if
the
conditions laid down in this
Rule are found to exist. The
parties are not entitled, as
of right, to the admission of
such evidence. Thus, the
provision does not apply,
when on the basis of the
evidence on record, the
appellate
court
can
pronounce a satisfactory
judgment. The matter is
entirely
within
the
discretion of the court and
is to be used sparingly.
Such a discretion is only a
judicial
discretion
circumscribed
by
the
limitation specified in the
Rule
itself.
(Vide K.
Venkataramiah v. A.
Seetharama
Reddy [AIR
1963 SC 1526] , Municipal
Corpn.
of
Greater
Bombay v. Lala
Pancham [AIR 1965 SC
1008]
, Soonda
Ram v. Rameshwarlal [(19
75) 3 SCC 698 : AIR 1975
SC 479] and Syed Abdul
Khader v. Rami
Reddy [(1979) 2 SCC 601 :
AIR 1979 SC 553] .)
38. Under Order 41
Rule 27 CPC, the appellate
court has the power to
allow a document to be
produced and a witness to
be
examined.
But
the
requirement of the said
court must be limited to
those cases where it found
it necessary to obtain such
evidence for enabling it to
pronounce judgment. This
provision does not entitle
the appellate court to let in
fresh
evidence
at
the
appellate stage where even
without such evidence it
can pronounce judgment in
a case. It does not entitle
the appellate court to let in
fresh evidence only for the
purpose
of
pronouncing
judgment in a particular
way. In other words, it is
only for removing a lacuna
in the evidence that the
appellate
court
is
empowered
to
admit
additional
evidence.
(Vide Lala Pancham [AIR
1965 SC 1008] .)
41. The words "for
any
other
substantial
cause" must be read with
the word "requires" in the
beginning of the sentence,
so that it is only where, for
any other substantial cause,
the appellate court requires
additional evidence, that
this Rule will apply e.g.
when evidence has been
taken by the lower court so
imperfectly
that
the
282 INDIAN LAW REPORTS ALLAHABAD SERIES
appellate court cannot pass
a satisfactory judgment.
48. To sum up on
the issue, it may be held
that
an
application
for
taking additional evidence
on record at a belated stage
cannot be filed as a matter
of right. The court can
consider
such
an
application
with
circumspection, provided it
is covered under either of
the prerequisite conditions
incorporated
in
the
statutory provisions itself.
The discretion is to be
exercised
by
the
court
judicially
taking
into
consideration the relevance
of the document in respect
of the issues involved in
the
case
and
the
circumstances under which
such an evidence could not
be led in the court below
and as to whether the
applicant had prosecuted
his case before the court
below diligently and as to
whether such evidence is
required to pronounce the
judgment by the appellate
court. In case the court
comes to the conclusion
that the application filed
comes
within
the
four
corners of the statutory
provisions
itself,
the
evidence may be taken on
record, however, the court
must record reasons as on
what
basis
such
an
application
has
been
allowed.
However,
the
application should not be
moved at a belated stage.
49. An application
under Order 41 Rule 27
CPC is to be considered at
the time of hearing of
appeal on merits so as to
find
out
whether
the
documents
and/or
the
evidence
sought
to
be
adduced
have
any
relevance/bearing on the
issues
involved.
The
admissibility of additional
evidence does not depend
upon the relevancy to the
issue on hand, or on the
fact, whether the applicant
had an opportunity for
adducing such evidence at
an earlier stage or not, but
it depends upon whether or
not the appellate court
requires
the
evidence
sought to be adduced to
enable it to pronounce
judgment or for any other
substantial cause. The true
test, therefore is, whether
the appellate court is able
to pronounce judgment on
the
materials
before
it
without
taking
into
consideration the additional
evidence
sought
to
be
adduced. Such occasion
would arise only if on
examining the evidence as
it stands the court comes to
the conclusion that some
inherent lacuna or defect
becomes apparent to the
court.
(Vide Arjan
Singh v. Kartar
Singh [1951 SCC 178 :
11 All. Ishtiyak Ali Vs. Shiv Raj
283
AIR
1951
SC
193]
and Natha
Singh v. Financial Commr.,
Taxation [(1976) 3 SCC 28
: AIR 1976 SC 1053] .)
51. In Arjan
Singh v. Kartar
Singh [1951 SCC 178 :
AIR 1951 SC 193] this
Court held : (AIR pp. 19596, paras 7-8)
"7.
...
If
the
additional evidence was
allowed to be adduced
contrary to the principles
governing the reception of
such evidence, it would be
a case of improper exercise
of
discretion,
and
the
additional
evidence
so
brought on the record will
have to be ignored and the
case decided as if it was
non-existent. ...
8. ... The order
allowing the appellant to
call the additional evidence
is dated 17-8-1942. The
appeal was heard on 24-41942. There was thus no
examination
of
the
evidence on the record and
a decision reached that the
evidence
as
it
stood
disclosed a lacuna which
the court required to be
filled up for pronouncing
its judgment." (emphasis
added)"

26. Similar view has been taken by
the Hon'ble Supreme Court, in the case of
Nattha Singh and others Versus The
Financial
Commissioner,
Taxation,
Punjab and Others; (1976) 3 SCC 28 and
Coordinate Benches of this court in the
cases of Basant Kumar Mehrotra Versus
Ram Laxman Janki Virajman Mandir;
2018 (36) LCD 1094 and Jai Narain
Pandey and after him Ram Bilas Pandey
Versus Lallan Tiwari and others; 1972
SCC OnLine All 258.

27. Adverting to the facts of the
present case, this court finds that the
plaintiff-appellant had filed a suit for
permanent injunction on his behalf and on
behalf of co-sharers and for their benefit
also without disclosing that his two sisters,
namely, Smt. Ajmat Ahsan and Kudrat
Ahsan alias Nadrtula Momina, who were
also co-sharers of 1/8th each, have
migrated to Pakistan, settled there and
adopted the citizenship of Pakistan. The
reply to the application under Order 41
Rule 27 CPC also indicates that plaintiffappellant has not stated that they have not
left India for Pakistan and not became
Pakistani citizens, whereas the documents
sought to be placed on record by way of
additional evidence indicates that they had
went to Pakistan and became Pakistani
citizens prior to 1966, when their shares
had been declared enemy property and
vested in Custodian, Enemy Properties of
India and they died about 9-10 years back.

28. The evidence adduced by the
plaintiff-appellant before the trial court also
indicates that he has stated that they live in
Lucknow, whereas their children are
working in Bangladesh, therefore they used
to go to Bangladesh, therefore not only
there was concealment but the plaintiffappellant also made false statement and
mislead the court. The plea of the
defendant-respondent is also that they have
died about 9-10 years back and it has not
been denied, therefore, it stands admitted.
Even then he filed a suit for partition before
284 INDIAN LAW REPORTS ALLAHABAD SERIES
the Sub Divisional Officer and it has been
withdrawn only after the application under
Order 41 Rule 27 CPC was moved before
this court, therefore, the suit for partition
was also filed with concealment and
against the dead persons. Thus it appears
that the plaintiff-appellant is in habit of
concealment of facts before the court of
law.

29. Learned counsel for the
plaintiff-appellant, on a query being made
to him, had stated that if the sisters of the
plaintiff-appellant have went to Pakistan
and their shares have been vested in
Custodian, Enemy Property, he would be
only the co-sharer and suit can be filed by
one of the co-sharers.

30. In view of above, this court is of
the view that the additional evidence sought
to be produced by the defendant-respondent
is required to be taken on record for the just
decision of the case and pronouncement of
the judgment because it will have to be
considered as to whether the suit was filed by
material concealment of fact and the decree
was obtained by playing fraud on the court
which can be considered at any stage, if
comes to light and the suit can be dismissed
on this ground alone because no relief can be
granted in such case and as to whether the
suit could have been filed on behalf of the
Custodian, Enemy Property without his
permission or authority. Therefore the
application under Order 41 Rule 27 CPC
filed by the defendant-respondent is liable to
be allowed and the additional evidence
annexed with the same are liable to be taken
on record and an additional substantial
question of law arises, which is to be
formulated.

31. In view of above, the C.M.
Application No.06 of 2022 filed under
Order 41 Rule 27 C.P.C. is allowed and the
documents annexed therewith as Annexure
No.A-1 to A-7 are taken on record. The
following substantial question of law is
formulated besides the two substantial
questions of law formulated by this court,
by means of order dated 23.05.2005:-

"(iii) Whether the suit for
permanent injunction filed by the
plaintiff-appellant
suffers
from
material concealment of facts and
liable to be dismissed on this
ground?"

32. List on 28th of November,
2024 for further hearing.
----------
(2024) 11 ILRA 284
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.11.2024

BEFORE

THE HON'BLE ATTAU RAHMAN MASOODI, J.
THE HON'BLE SUBHASH VIDYARTHI, J.

Special Appeal Defective No. 601 of 2024

State of U.P. & Ors. ...Appellants
Versus
Shivani Singh ...Respondent

Counsel for the Appellants:
C.S.C.

Counsel for the Respondent:
Sudhir Singh Raghuvanshi

Allahabad High Court Rules-Chapter VIII
Rule 5-U.P. Revenue Code,2006-Section
67(a)-U.P. Zamindari Abolition and Land
Reforms
Act,1950-Section
123(1)-
quashing
of
disciplinary
proceedings
initiated against the respondent(a Deputy
Collector)-respondent
was
issued
a
charge-sheet
and
a
supplementary
charge-sheet during her tenure as Sub-