# Sri Rameshwar Devi & Anr v. Rakesh Mishra

- **Citation:** (2024) 4 ILRA 799
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-28
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-rameshwar-devi-anr-v-rakesh-mishra-50982
- **Pages:** 6

## Headnote

(A) Civil Law - The Code of Civil Procedure,
1908 - Section 151 - Order 41 - Rule 27 -
Production
of
additional
evidence
in
Appellate Court -Appellate courts can allow
additional
evidence
under
exceptional
circumstances as specified in Order 41 Rule
27 CPC, provided the evidence is necessary
to
pronounce
judgment
or
for
other
substantial reasons - Discretion must be
judicially
exercised
-
Application
for
additional evidence under Order 41 Rule 27
CPC should be considered at the time of
hearing of the appeal on merits - Court must
determine whether additional evidence is
essential to pronounce judgment - Prehearing rejection of such applications,
without proper consideration, is contrary to
established legal principles. (Para 8-11)

Petitioners - Tenants of shop purchased by
respondent - Sought to adduce additional
evidence at the appellate stage - Application
800 INDIAN LAW REPORTS ALLAHABAD SERIES
under Order 41 Rule 27 CPC rejected by
Appellate Authority on grounds of unnecessary
evidence - Petitioners contended inability to file
evidence earlier due to counsel's illness and
retirement - hence petition. (Para 2-5)

HELD: - Order of Appellate Authority rejecting
petitioners' application under Order 41 Rule 27
CPC at the Appellate Stage was set aside.
Appellate authority was directed to reconsider
the application as per the guidelines laid down
by the Supreme Court in Ibrahim Uddin v. Union
of India (2012) and to decide the appeal
expeditiously. (Para -13)

Petition allowed. (E-7)

List of Cases cited:

## Text

4 All. Sri Rameshwar Devi & Anr. Vs. Rakesh Mishra
799
Margarida Sequeira Fernandes v. Erasmo
Jack de Sequeira, reported in (2012) 5 SCC
370 (Before: Dalveer Bhandari, H.L. Dattu
and Deepak Verma, JJ.) espoused that in
order to prevent the court's time from being
consumed in frivolous cases and to restrain or
minimise the institution of such litigation,
exemplary costs must be imposed. Relevant
paragraphs are extracted below:

"82. This
Court
in
a
recent
judgment in Ramrameshwari Devi [(2011) 8
SCC 249 : (2011) 3 SCC (Cri) 481 : (2011) 4
SCC (Civ) 1] aptly observed at p. 266, para
43 that unless wrongdoers are denied profit
from frivolous litigation, it would be difficult
to prevent it. In order to curb uncalled for
and frivolous litigation, the courts have to
ensure that there is no incentive or motive for
uncalled for litigation. It is a matter of
common experience that the court's otherwise
scarce
time
is
consumed
or
more
appropriately, wasted in a large number of
uncalled for cases. In this very judgment, the
Court provided that this problem can be
solved or at least can be minimised if
exemplary costs is imposed for instituting
frivolous litigation. The Court observed at pp.
267-68, para 58 that imposition of actual,
realistic or proper costs and/or ordering
prosecution in appropriate cases would go a
long way in controlling the tendency of
introducing false pleadings and forged and
fabricated documents by the litigants.
Imposition of heavy costs would also control
unnecessary adjournments by the parties. In
appropriate cases, the courts may consider
ordering prosecution otherwise it may not be
possible to maintain purity and sanctity of
judicial proceedings."

52. In conclusion, the imposition of
costs in cases of frivolous litigation is not
merely a punitive measure but rather an
essential tool for maintaining the integrity of
the judicial system, deterring abuse of legal
processes, and promoting access to justice.
By holding litigants accountable for their
actions and imposing costs when warranted,
the legal system reaffirms its commitment to
upholding the principles of justice, fairness,
and equity for all members of the society.
----------
(2024) 4 ILRA 799
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.02.2023
BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Matters U/A 227 No.9446 of 2023 (Civil)

Sri Rameshwar Devi & Anr. ...Petitioners
Versus
Rakesh Mishra ...Respondent

Counsel for the Petitioners:
Sri Arpit Agarwal

Counsel for the Respondent:
Sri Rahul Saxena, Sri Vivek Saran

(A) Civil Law - The Code of Civil Procedure,
1908 - Section 151 - Order 41 - Rule 27 -
Production
of
additional
evidence
in
Appellate Court -Appellate courts can allow
additional
evidence
under
exceptional
circumstances as specified in Order 41 Rule
27 CPC, provided the evidence is necessary
to
pronounce
judgment
or
for
other
substantial reasons - Discretion must be
judicially
exercised
-
Application
for
additional evidence under Order 41 Rule 27
CPC should be considered at the time of
hearing of the appeal on merits - Court must
determine whether additional evidence is
essential to pronounce judgment - Prehearing rejection of such applications,
without proper consideration, is contrary to
established legal principles. (Para 8-11)

Petitioners - Tenants of shop purchased by
respondent - Sought to adduce additional
evidence at the appellate stage - Application
800 INDIAN LAW REPORTS ALLAHABAD SERIES
under Order 41 Rule 27 CPC rejected by
Appellate Authority on grounds of unnecessary
evidence - Petitioners contended inability to file
evidence earlier due to counsel's illness and
retirement - hence petition. (Para 2-5)

HELD: - Order of Appellate Authority rejecting
petitioners' application under Order 41 Rule 27
CPC at the Appellate Stage was set aside.
Appellate authority was directed to reconsider
the application as per the guidelines laid down
by the Supreme Court in Ibrahim Uddin v. Union
of India (2012) and to decide the appeal
expeditiously. (Para -13)

Petition allowed. (E-7)

List of Cases cited:

1. Ram Karan Vs Jagdeep Singh, 2016 (2) ARC
479

2. Smt. Anita Sharma Vs Om Prakash Batra,
2015 (2) ARC 615

3. Lekhraj Bansal Vs St. of Raj. & anr., 2014
(15) SCC 686

4. U.O.I. Vs Ibrahim Uddin & anr., 2012 (8) SCC
148

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Sri Arpit Agarwal, learned
counsel for the petitioners and Shri Vivek
Saran, learned counsel for the respondents.`

2. The instant petition under Article 227
of the Constitution of `India has been filed
for setting aside the judgment and order
`dated 08.08.2023, passed by the Appellate
Authority/ Additional District Judge, Court
No. 4 / Special Judge (EC Act) Pilibhit, in
P.A. Appeal No. 8 of 2023 (Rameshwari
Devi and another vs. Rakesh Mishra)
whereby and whereunder the `Application
filed by the petitioner for adducing additional
evidence under Order 41 Rule 27 read with
Section 151 CPC has been rejected.

`3. It is the case of the petitioners that
they are tenants of a `shop situated in
Mohalla Bazar Katra, Tehsil and Town Area
Bisalpur, Pilibhti and are conducting the
business of Bangles from the shop in
question. Originally, the tenancy of the shop
was in the name of Shri Radheyshyam the
late husband of the petitioner no. 1 and father
of petitioner no. 2. After the death 1 of 9 `of
Shri Radheshyam the tenancy devolved upon
the petitioners. The shop was originally
owned by one Sushil Kumar and was
purchased by the respondent herein vide Sale
Deed
dated
21.07.2015.
A
Release
Application under Section 21(1)(a) of the UP
Act No. 13 of 1972 was filed by the
respondent without issuing notice to the
petitioners as contemplated under the 1st
Proviso to Section 21(1) of the Act which
proceedings were registered as PA Case No.
114 of 2018. The petitioners appeared in the
Case and filed their objections taking a
specific plea in their objections that the
plaintiff/ respondent had not served any
notice upon the petitioners/ tenants that he
had purchased the shop. The learned
Prescribed Authority, vide judgment and
order dated 20.01.2023 allowed the Release
Application. The petitioners being aggrieved
by the order of the Prescribed Authority, have
preferred an Appeal being Appeal No. 8 of
2023. During the pendency of the Appeal the
original
Counsel
of
the
petitioners,
conducting the Appeal, namely Shri V.S.
Ashok took retirement from the profession
and the petitioners had to engage another
counsel namely Shri Ishan Gupta. Shri Ishan
Gupta, Advocate on going through the file
opined that certain relevant documents had
not been brought on record and accordingly
the petitioners preferred an Application under
Order 41 Rule 27 CPC dated 09.05.2023
annexing theocuments/evidence to be brought
on record for consideration of the Appellate
Authority in seisin of the Appeal.The
documents sought to be filed as Additional
Evidence were (i) certified copy of order
4 All. Sri Rameshwar Devi & Anr. Vs. Rakesh Mishra
801
dated 13.02.2020 passed in Original Suit No.
113 of 2016 (ii) certified copy of the
Commission Report (iii) certified copy of the
extract of the House Tax 2 of 9 Assessment
pertaining to the year 2017-18 pertaining to
the plaintiff/ respondent and his wife,
photographs of the disputed shop and original
invitation Card. The landlord/respondent filed
objections to the Application under Order 41
Rule 27 CPC. The Appellate Authority vide
order dated 08.08.2023 has rejected the
Application under Order 41 Rule 27 CPC
which order has been impugned in the instant
petition. .

4. Shri Arpit Agarwal, learned
counsel for the tenant/petitioners has argued
that the Appellate Authority has committed
manifest error of law in rejecting the
Application to bring on record the Additional
Evidence. He has invited the attention of this
Court to the provisions of Order 41 Rule 27
(1) (b) CPC and submits that Order 41 Rule
27 assignsdiscretion to the Appellate Court to
require any document to be produced or any
witness to be examined to enable it to
pronounce judgment, or for any other
substantial cause. For the exercise of
discretion under Order 41 Rule 27 (1) (b)
CPC an application is required to be
considered along with hearing of the Appeal
on merits. It was not open for the Appellate
Authority to have exercised the discretion
vested in it before deciding the Appeal and
the Application was liable to be considered at
the time of hearing of the Appeal. Reliance
has been placed upon decisions of a
Coordinate Bench of this Court reported in
2016 (2) ARC 479 (Ram Karan Vs. Jagdeep
Singh) and 2015 (2) ARC 615 (Smt. Anita
Sharma Vs. Om Prakash Batra).

5. It is further argued by Shri Arpit
Agarwal that in the caseat hand it was
specifically pleaded in the Application for 3
of 9 Additional Evidence that the evidence
sought to be brought on record could not be
filed earlier on account of the earlier counsel
Shri V.S. Ashok withdrawing himself from
the case on account of his illness and
retirement from the profession and when
another counsel Shri Ishan Gupta was
engaged he at the time of preparation of the
Case opined that the documents were
required to be filed on record as Additional
Evidence. In the peculiar circumstances of
the case the documents were liable to be
accepted on record. This Court in almost
similar circumstances in a case reported in
2019 (2) ARC 155 set aside the order
rejecting the Application under Order 41
Rule 27 CPC and directing the Court below
to decide the Application within a time frame
taking into consideration the relevant law.

6. Per contra, Shri Vivek Saran, learned
counsel for therespondent submits that the
Appellate Authority committed no error or
illegality in rejecting the Application of the
petitioner under order 41 Rule 27 CPC.
Placing reliance upon the decision of the
Apex Court in the Case of Lekhraj Bansal
Vs. State of Rajsthan and Another Reported
in 2014 (15) SCC 686 it is submitted that
parties to an Appeal shall not be entitled to
produce additional evidence in the Appellate
Court unless the conditions stipulated under
Order 41 Rule 27 CPC are satisfied.
It is not the case of the petitioner that the
Trial Court had refused to admit the said
evidence which ought to have been admitted.
It is also not the case of the petitioner that the
said evidence was not within his knowledge
or could not, after the exercise of due
diligence be produced by him during
pendency of the PA case before the
Prescribed Authority. On the other 4 of 9
hand it is vehemently contended that the
Appellate
Authority
has
expressed
its
observation that the documents sought to be
brought on record are not necessary for
enabling it to pronounce judgment in the
Appeal. He thus submits that the petition is
liable to be dismissed at the threshold.
802 INDIAN LAW REPORTS ALLAHABAD SERIES

7. I, have heard learned counsel for the
parties and have perused the record.

8. Order 41 Rule 27 CPC provides for
production
of
additional
evidence
in
Appellate Court. The Appellate Court in
exercise of the discretionary jurisdiction and
subject of fulfilment of the conditions laid
down under Order 41 Rule 27 CPC may
allow the parties to adduce additional
evidence. Order 41 Rule 27 CPC reads as
under:

Order 41 Rule 27. Production of
additional evidence in Appellate Court:

1. The parties to an appeal shall not
be entitled pto 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]

(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 5 of 9 other
substantial cause, the Appellate Court may
allow such evidence or document to be
produced, r witness to be examined.

(2) Whenever additional evidence
is allowed to be produced by an Appellate
Court, the Court shall record the reason for its
admission.

9. A perusal of the above provisions
shows that it is anexception to the general
principle that the Appellate Court should not
travel outside the record of the lower Court
and

cannot take any evidence in Appeal.
Order 41 Rule 27 enables the Appellate Court
to take Additional Evidence in exceptional
circumstances if and only if the conditions
laid down in this provision are found to exist.
A certain discretion is permitted to be
exercised by the Appellate Court while
considering any application under Order 41
Rule 27 which is required to be exercised
judicially.
The
question
regarding
the
exercise of discretion and at what stage by the
Appellate
Court
while
considering
an
Application under Order 41 Rule 27 CPC
came up for consideration before the Apex
Court in the case of Union of India vs.
Ibrahim Uddin and Another , reported in
2012 (8) SCC 148. The Apex Court after
considering all aspects of the matter summed
up the Issue in para 48 of its judgment which
is being reproduced hereunder:

"48. To sum up on the issue, it may
be held that 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
condition 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 6 of 9 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
4 All. Sri Rameshwar Devi & Anr. Vs. Rakesh Mishra
803
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.".

10.

As
regards
the
stage
of
consideration of theApplication the Apex
Court was of the view that the Application
under Order 41 Rule 27 was liable to be
considered at the time of hearing of the
Appeal on merits so as to find out whether
the evidence sought to be adduced have any
relevance/ bearing on the issue involved. It
observed that the admissibility of the
Additional Evidence does not depend upon
the relevance to the issue at hand or on the
fact,
whether
theApplicant
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 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.
It
accordingly held in para 52 of the judgment
as under: " 52. Thus, from the above, it is
crystal clear that application for taking
additional evidence on record at anappellate
stage, even if filed during the pendency of the
appeal, is to be heard at the time of final
hearing of the appeal at a stage when after
appreciating the evidence on record, the court
reaches
the
conclusion
that
additional
evidence was requiredo be taken on record in
order to pronounce the judgment or for any
other substantial cause. In case, application
for taking additional evidence on record 7 of
9 has been considered and allowed prior to
the hearing of the appeal, the order being a
product of total and complete non-application
of mind, as to whether such evidence is
required to be taken on record to pronounce
the
judgment
or
not,
remains
inconsequential/inexecutable and is liable
tobe ignored."

11. Now coming to the impugned order
date 08.08.2023,passed by the Appellate
Authority, the Court finds that in substance
the Application under Order 41 Rule 27 CPC
has been rejected on the ground that the
conditions laid down under Order 41 Rule 27
were not satisfied and further that in its
opinion the Additional Evidence sought to be
brought on record was not required to
pronounce judgment or for any other
substantial cause. The discretion has been
exercised by the Appellate Court against the
petitioners
(Appellant)
even
without
discussing as to whether the documents
sought to be brought on record were
necessary or not for deciding the real
controversy at hand. Besides, the Application
has been rejected even prior to hearing of the
Appeal. In the opinion of the Court, the order
of the Appellate Authority rejecting the
Application is contrary to the ratio of the
decision of the Apex Court in the Case of
Ibrahim Uddin (Supra) inasmuch as the
Application under Order 41 Rule 27 CPC is
required to be considered at the time of
hearing of the Appeal on merits so asto find
out whether the documents/evidence sought
to be adduced have any relevance/bearing on
the issue involved and the true test being
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. 8
of 9

12. In the result, the petition succeeds
and is allowed.

13.
 The
impugned order
dated
08.08.2023,
passed
by
theAppellate
Authority/Additional District Judge (Court
No. 4)/Special Judge (EC Act) Pilibhit in PA
804 INDIAN LAW REPORTS ALLAHABAD SERIES
Appeal No. 8 of 2023, (Rameshwari Devi and
another vs. Rakesh Mishra) rejecting the
Application filed by the petitioner under
Order 41 Rule 27 CPC for adducing
Additional Evidence at the Appellate Stage is
set aside. The Appellate Authority is directed
to reconsider the petitioners' application in
accordance with the law laid down by the
Apex Court in the Case of Ibrahim Uddin
(Supra) and make all endevour to decide the
Appeal expeditiously in accordance with law
without
granting
any
unnecessary
adjournments to either of the parties.

14. No order as to costs.
----------
(2024) 4 ILRA 804
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.04.2024
BEFORE

THE HON'BLE SHAMIM AHMED, J.

Matters U/A 227 No. 1228 of 2024

Mangla Prasad Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Lal Bahadur Khan

Counsel for the Respondents:
G.A.

(A) Criminal Law - Negotiable Instruments
Act, 1881 - Sections 138, 143A & 148 -
Indian Penal Code, 1860 - Sections 406 &
420- Any order challenged in the appeal
and the said appeal was admitted and
pending, thus, one cannot permit a
swinging pendulum to continue swinging
during the pendency of the appeal.(Para -
20)

(B) The Negotiable Instruments Act, 1881
(as amended in 2018) - Section 148 -
Appellate Court discretionary power to
order the appellant to deposit a minimum
of 20% of the fine or compensation during
the appeal against a conviction under
Section 138 - Non-deposition of fine
should not lead to punitive measures like
automatic cancellation of bail. (Para 8,
16-18, 21-22)

Petitioner was convicted under Section 138 of NI
Act, 1881 - preferred appeal before Appellate
Court - along with Memo of Appeal moved two
applications - one for granting bail during
pendency of appeal - other for staying operation of
order passed by Trial Court - appeal was admitted
but stay application was rejected - directed the
petitioner to deposit the fine amount within 10
days - in case non-deposition of fine by appellant -
bail order shall stand automatically cancelled -
hence Petition. (Para 1-14)

HELD: - Appellate Court's order directing the
petitioner to deposit the entire fine amount
imposed by the Trial Court without considering
the provisions of Section 148 of the Negotiable
Instruments Act, 1881 is erroneous and against
the law. Petitioner is directed to deposit 20% of
the fine imposed by the Trial Court within 60
days from the date of delivery of judgment. Bail
already granted by the Appellate Court shall
continue till the disposal of the appeal pending
before the Appellate Court. (Para 24-27)

Petition disposed of. (E-7)

List of Cases cited:

1. Surinder Singh Deswal @ Colonel S.S. Deswal
& ors. Vs Virender Gandhi, (2019) SCC 341

2. Jamboo Bhandari Vs M.P. St. Industrial
Development Corp. Ltd. & ors., (2023) 10 SCC
446

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Lal Bahadur Khan,
learned counsel for the petitioner, Sri Hari
Shanker Bajpai, learned A.G.A.-I for the
State and perused the record.

2. In view of the order proposed to be
passed, notice to opposite party No.2 is