Order 41 Rule 27 CPC | Additional Evidence Plea Filed During Pendency Of Appeal To Be Heard During Final Hearing: Rajasthan High Court

In the background of conflicting orders of Supreme Court, Rajasthan High Court held that an application under Order 41 Rule 27 CPC for taking additional evidence on record at an appellate stage, even if filed during the pendency of appeal had to be heard at the time of final hearing of appeal.

Justice Anoop Kumar Dhand was hearing a petition filed against an order of Appellate Rent Tribunal  that rejected petitioner's application requesting decision of the application under Order 41, Rule 27, CPC, before decision on appeal against the eviction order.

An eviction order was passed against the petitioner against which an appeal was preferred by him. This appeal was pending adjudication on merits, when an application was filed by him for taking additional evidence on record. The Tribunal posted this application for its disposal at the time of the final hearing of the appeal.

At this stage, the petitioner filed an application under Section 151 CPC, to decide the application under Order 41, Rule 27, CPC prior to deciding the appeal on merits. This application was rejected by the Tribunal. Hence, the petition was filed against this decision.

After hearing the contentions, the Court highlighted the conflicting Supreme Court judgments on the issue. In the case of North Eastern Administration Gorakhpur v Bhagwan (2008), the Apex Court had held that application submitted under Order 41, Rule 27, CPC had to be decided first before taking up the appeal on merits.

On the contrary, in the case of Union of India v. Ibrahim Uddin & Ors. (2012) it was ruled by the Supreme Court that such application, even if filed during pendency of appeal had to be heard at the time of final hearing of the appeal. In case it was considered and allowed prior to hearing of the appeal, such order was a product of complete non-application of mind.

In the background of this conflictual position, the Court made a reference to another Supreme Court decision of Mattulal v. Radhe Lal (1974), in which it was opined that where there were two conflicting judgments of the same court, the later judgment would be binding, unless the earlier decision was passed by a larger bench.

In this light, the Court held that, “In the instant case, the judgment of the Hon'ble Apex Court in the case of North Eastern Administration Gorakhpur (supra) is a previous judgment and the view expressed by the Hon'ble Apex Court in the case of Ibrahim Uddin (supra) is a later view by a Bench of equal number of Judges. Hence, following the ratio as propounded in the case of Ibrahim Uddin (supra), it can safely be held that the application filed under Order 41 Rule 27 CPC is required to be considered at the time of deciding the appeal on merits.”

Accordingly, the petition was rejected.

Title: Shankar Lal Saini v Smt. Nagina Patoliya & Anr.

Citation: 2025 LiveLaw (Raj) 280

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