# Smt. Rajani Bala Rastogi v. Sanjay Kumar Gupta

- **Citation:** (2020) 1 ILRA 533
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-17
- **Case number:** Matters Under Article 227 No. 8303 of 2019
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-rajani-bala-rastogi-v-sanjay-kumar-gupta-45188
- **Pages:** 4

## Headnote

A. Civil Procedure Code (5 of 1908), O.41,
R.27 - Additional evidence in Revision -
application under Order 41 Rule 27 for
bringing additional evidence should be
decided at the time of final hearing of
Revision
-
taking
a
view
on
the
application
before
hearing
of
the
Revision, inappropriate.

Petitioner-revisionist filed Application under
Order 41 Rule 27 of CPC for producing
additional evidence, which was decided prior to
finally deciding the Revision - Held - it should
have been heard and decided at the time of
final hearing of Revision (Para 10 & 11)
Matter Under Article 227 allowed. (E-5)

List of cases cited: -

## Text

1 All. Smt. Rajani Bala Rastogi Vs. Sanjay Kumar Gupta
533
District - Amroha in Panchayat Raj
Revision No. 1 of 2019 (Zeenat Fatma vs.
Irshad Fatma and others) cannot be
sustained in the eyes of law and thus is set
aside. The writ petition is allowed.

21. The petitioner shall now, in view of
the order dated 24.4.2019 passed by the
Prescribed Authority in the Election Petition,
shall be treated as a Pradhan of Gram Panchayat
Fanderi, Tehsil Dhanaura, District- Amroha.
----------
(2020)1ILR 533

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.12.2019

BEFORE
THE HON'BLE NEERAJ TIWARI, J.

Matters Under Article 227 No. 8303 of 2019

Smt. Rajani Bala Rastogi ...Petitioner
Versus
Sanjay Kumar Gupta ...Respondent

Counsel for the Petitioner:
Sri Bhanu Bhushan Jauhari, Sri Rishi
Bhushan Jauhari

Counsel for the Respondent:
Sri Lallan Verma

A. Civil Procedure Code (5 of 1908), O.41,
R.27 - Additional evidence in Revision -
application under Order 41 Rule 27 for
bringing additional evidence should be
decided at the time of final hearing of
Revision
-
taking
a
view
on
the
application
before
hearing
of
the
Revision, inappropriate.

Petitioner-revisionist filed Application under
Order 41 Rule 27 of CPC for producing
additional evidence, which was decided prior to
finally deciding the Revision - Held - it should
have been heard and decided at the time of
final hearing of Revision (Para 10 & 11)
Matter Under Article 227 allowed. (E-5)

List of cases cited: -

1. St. of Raj Vs T.N. Sahani & Ors (2001) 10
SCC 619

2. Smt. Sandal (Deceased) & anr Vs. Smt.
Hamida & Ors 2018 (3) ADJ 415

3. Basayya I. Mathad Vs Rudrayya S. Mathad &
ors 2008 (71) ALR 178

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard learned counsel for the
petitioner and Sri Lallan Verma, learned
counsel for the respondent.

2. By way of present petition,
petitioner is assailing the order dated
11.09.2019 passed in S.C.C. Revision No.
1 of 2018 (Smt. Rajani Bala Rastogi Vs.
Sanjay Kumar Gupta).

3. Learned counsel for the petitioner
submitted that petitioner has filed an
application under Order 41 Rule 27 of
CPC for production of additional evidence
in Appellate Court which was rejected by
the Revisional Court vide order dated
11.09.2019. Apart from many other
grounds, he has submitted that this
application can only be decided at the time
of final hearing of the Revision and not
before that by a separate order. In support
of his contention, he has placed reliance
upon the judgment of Apex Court passed
in the matter of State of Rajasthan Vs.
T.N. Sahani and others, (2001) 10 SCC
619 decided on 12.10.2000 and also
judgment of this Court passed in the
matter of Smt. Sandal (Deceased) and
another Vs. Smt. Hamida and others,
2018 (3) ADJ 415 decided on 04.09.2017
and submitted that in the light of
534 INDIAN LAW REPORTS ALLAHABAD SERIES
provisions of Order 41 Rule 27 of CPC as
well as judgment given by the Apex Court
in the matter of State of Rajasthan
(Supra) and by this Court in the matter of
Smt.
Sandal
(Deceased)
(Supra),
impugned order is bad in law and is liable
to be set aside.

4. Sri Lallan Verma, learned counsel
for
the
respondent
has
vehemently
opposed the argument of counsel for the
petitioner and submitted that it is not open
for the revisionist to file additional
evidence at any time. In support of his
contention, he has placed reliance upon the
judgment of the Apex Court in the matter
Basayya I. Mathad Vs. Rudrayya S.
Mathad and others, 2008 (71) ALR 178
decided on 24.01.2008.

5. I have considered the rival
submissions made by learned counsel for
the parties as well as judgments relied
upon and perused the record.

6. There is no factual dispute in the
argument of counsel for the petitioner,
therefore, I have proceeded to consider the
legal submissions made by counsel for the
petitioner and judgments relied upon them.

7. The Apex Court in the matter of
State of Rajasthan (Supra) has clearly
stated that the application for additional
evidence can only be decided at the time
of final hearing of the Revision and not
before final hearing of the Revision by a
separate order. Relevant paragraph No. 4
of the judgment is quoted below:-

"4. It may be pointed out that
this Court as long back as in 1963 in K.
Venkataramiah
v.
Seetharama
Reddy
pointed out the scope of unamended
provision of Order 41 Rule 27(c) that
though there might well be cases where
even though the court found that it was
able to pronounce the judgment on the
state of the record as it was, and so,
additinla evidence could not be required to
enable it to pronounce the judgment, it still
considered that in the interest of justice
something which remained obscure should
be filled up so that it could pronounce its
judgment in a more satisfactory manner.
This is entirely for the court to consider at
the time of hearing of the appeal on merits
whether looking into the documents which
are sought to be filed as additional
evidence,
need
be
looked
into
to
pronounce its judgment in a more
satisfactory manner. If that be so, it is
always open to the court to look into the
documents and for that purpose amended
provision of Order 41 Rule 27 (b) CPC
can be invoked. So the application under
Order 41 Rule 27 should have been
decided along with the appeal. Had the
Court found the documents necessary to
pronounce the judgment in the appeal in a
more satisfactory manner it would have
allowed the same; if not, the same would
have been dismissed at that stage. But
taking a view on the application before
hearing of the appeal, in our view, would
be inappropriate. Further the reason given
for the dismissal of the application is
untenable. The order under challenge
cannot, therefore, be sustained. It is
accordingly set aside. The application is
restored to its file. The High Court will
now
consider
the
appeal
and
the
application and decide the matter afresh in
accordance with law."

8. The same view was also taken by
this Court in the matter of Smt. Sandal
(Deceased) (Supra). Relevant paragraph
Nos. 13, 14 & 15 of the said judgment is
quoted below:-
1 All. Smt. Rajani Bala Rastogi Vs. Sanjay Kumar Gupta
535

"13.
As
to
the
stage
of
consideration it has been held that even if
an application for additional evidence
under Order 41 Rule 27 CPC is filed
during the pendency of the appeal, it has
to be heard at the time of final hearing of
the appeal i.e. at the stage when it is
possible for the court to reach at its
conclusion, after appreciating the evidence
already on record that the additional
evidence was required to be admitted on
record in order to pronounce the judgment
or for any other substantial cause.

14. The reason behind is that in
case such an application is considered and
allowed at a prior stage, the order would
be a product of total and complete non
application of mind to the question as to
whether such evidence is required to be
taken on record to pronounce the judgment
or not.

15. Thus from a careful reading
of the above noted judgement, the
principles laid down therein as noted
above, the law relating to admission of
additional evidence under Order 41 Rule
27 CPC is crystal clear. The Court for
taking such evidence on record has to
exercise
its
judicial
discretion
circumscribed by the limitations provided
under the statutory provision and that such
a consideration can only be made at the
time of final hearing of the appeal as it
would not be possible for the first
appellate court to appreciate the evidence
already on record and to record reasons
for doing so, at a prior stage."

9. The judgment of Apex Court in the
matter of Basayya I. Mathad (Supra) is
not contrary to the judgments of the Apex
Court passed in the matter of State of
Rajasthan (Supra) and in fact the
judgment of Basayya I. Mathad (Supra)
is only saying that parties to the lis are not
entitled to produce additional evidence as
of course or routine but must satisfy the
conditions stated in Sub-Clause (a) & (aa)
of Order 41 Rule 27 of CPC. Relevant
paragraph of the judgment of Basayya I.
Mathad (Supra) is quoted below:-

"8. ..................

(2)
Wherever
additional
evidence is allowed to be produced by an
Appellate Court, the Court shall record the
reason for its admission. It is clear that
parties to the lis are not entitled to
produce additional evidence as of course
or routine but must satisfy the conditions
stated in sub-clauses (a)&(aa). Admittedly,
such recourse has not been resorted to
neither by the party concerned nor
adhered those principles by the High
Court. Paragraph 3 of his order shows
that the learned Judge verified the
document produced on his direction
without
complying
the
mandate
as
provided under Rule 27 of Order XLI.
Hence, we are of the view that the finding
of the learned Judge based on a document
produced at the time of argument de hors
to Rule 27 referred above cannot be
sustained in the eye of law. In such
circumstances, his ultimate conclusion
treating the suit property as a family
property partible among the members of
the family is also liable to be set aside. In
fact, sub-clause (2) of Rule 27 mandates
that wherever additional evidence is
allowed to be produced by an Appellate
Court, it shall record the reason for its
admission. It is needless to mention that
the High Court neither followed those
conditions for production of additional
evidence nor recorded the reason for
basing reliance on the same."

10. Law laid down by the Apex
Court in the matter of Basayya I. Mathad
536 INDIAN LAW REPORTS ALLAHABAD SERIES
(Supra) can be very well raised by the
respondent-plaintiff at the time of final
hearing objecting the application filed
under Order 41 Rule 27 of CPC, but so far
as law laid down by the Apex Court in the
matter of State of Rajasthan (Supra), it is
very much clear that the application filed
under Order 41 Rule 27 of CPC can be
decided at the time of final hearing of
Revision.

11. In the present case, there is no
dispute on the point that the application of
petitioner-revisionist has been filed under
Order 41 Rule 27 of CPC for producing
additional evidence which was decided
prior to finally deciding the Revision
whereas in the light of law laid down by
this Court, it should have been heard and
decided at the time of final hearing of
Revision i.e. at the stage when it is
possible for the Court concerned to
consider this fact that whether additional
evidence is required to be taken on record
to decide the case or for substantial justice,
therefore, impugned order is bad in law
and is liable to be set aside.

12. With the aforesaid observations,
impugned order is hereby set aside and
petition is allowed.

13. No order as to costs.

14. Revisional Court is directed to
decide the application of the Revisionist
filed under Order 41 Rule 27 of CPC in
the light of law laid down by the Apex
Court as well by this Court.
----------
(2020)1ILR 536

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2019
BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Matters Under Article 227 No. 8804 of 2019

Makkhan Singh & Anr. ...Petitioners
Versus
Shyam Singh & Ors. ...Respondents

Counsel for the Petitioners:
Sri Manish Dev Singh

Counsel for the Respondents:
Sri Sukesh Kumar

A. Civil Procedure Code (5 of 1908), Order
39 Rule 2A - 'wilful disobedience' - to
attract the provisions of O. 39 R. 2A - it
has to be proved to satisfaction of Court
that
disobedience
was
not
mere
'disobedience' but a 'wilful disobedience'
, by cogent evidence, by the party which
complains of the breach - There must be
clear proof that the injunction order was
within full knowledge of the person who
is alleged to have disobeyed the same - A
person cannot be held to be guilty
merely on the basis of a constructive
notice or presumption with regard to
service of notice - Court cannot proceed
on surmises, suspicion or inferences.

Ad-interim
injunction
directing
parties
to
maintain status quo - notice sent by registered
post to the defendants - defendants harvested
the wheat crop - Held - no material on record
to show that injunction order served on the
defendants - a case of willful disobedience had
not been made out so as to attract the
provisions of Order XXXIX Rule 2A. (Para 14,
15, 16 & 18)

Matter Under Article 227 dismissed. (E-5)
List of cases cited: -

1. C.C. Alavi Haji Vs. Palapetty Muhammed
 and another (2007) 6 SCC 555

2.
U.C.
Surendranath Vs. Mambally's Bakery
AIR 2019 SC 3799