Allowed

Shobha Bai v. Urban Improvement Trust,Udaipur

Rajasthan HC13 Sept 2018CW/7952/2018

Case brief

AI extract

What is this about?

This writ petition challenged the rejection of an application to place subsequent documents on record during an appeal. The High Court quashed the lower court's order, directing inclusion of said documents to be decided on relevance later.

What did the court decide?

The order dated 03.04.2018 was quashed, set aside, and the documents sought by the petitioner were ordered to be taken on record.

Shobha Bai Vs Urban Improvement Trust,Udaipur — Civil Procedure and Limitation | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ No. 7952/2018

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Shobha Bai D/o Sh. Rod Singh, W/o Sh. Jodh Singh, By Caste Rajput, Resident Of Ramdevji Ka Bada, Village Debari, Tehsil Girwa, District Udaipur Raj.

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----Petitioner

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Versus

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Urban Improvement Trust, Udaipur Through Its Secretary, Uit, Udaipur.

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----Respondent

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For Petitioner(s) : Mr. Sandeep Shah For Respondent(s) : Mr. Anurag Shukla

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JUSTICE DINESH MEHTA

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Order

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13/09/2018

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The present writ petition is directed against the order dated 03.04.2018 passed by learned Additional District Judge No.1, Udaipur (hereinafter referred to as “Appellate Court”), whereby petitioner’s application dated 15.03.2017, under Order XLI Rule 27 of the Code of Civil Procedure (hereinafter referred to as “ the Code”) has been rejected.

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The facts in brief, leading to filing of the present writ petition are that the petitioner-plaintiff filed a suit for permanent injunction against the defendant-respondent herein. Along with the said suit, the petitioner had also filed an application for grant of temporary injunction which came to be rejected by the Trial Court, vide its order dated 25.08.2012. The petitioner filed an appeal against the rejection of his application for grant of temporary injunction. During the pendency of the appeal, she has

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(2 of 5)

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[CW-7952/2018]

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filed an application under Order XLI Rule 27 of the Code, seeking to place certain documents on record.

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By way of the aforesaid application dated 15.03.2017, the petitioner asserted that these documents relate to the period subsequent to the passing of the order and they are relevant for the proper disposal of the appeal and to determine the question involved.

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The respondent opposed the application by filing a reply dated 18.09.2017 to the application essentially dealing with the nature of documents and consequential right, interest and title in the property, qua the petitioner.

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The learned Appellate Court however rejected the said application filed by the petitioner vide his order dated 03.04.2018 observing as under:-

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“5gLrxr vihy vLFkkbZ fu’ks/kkKk dk izkFkZuk i= v/khuLFk U;k;ky; }kjk [kkfjt djus ds fo:) is”k dh xbZ gSA i=koyh dk voyksdu ls Li’V gS fd v/khuLFk U;k;ky; }kjk okLrfod Lokeh ds fo:) LFkkbZ fu’ks/kkKk tkjh ugha dh tk ldrh gS] ds vk/kkj ij izFke n"V;k ekeyk vihykUV~l dk ugha gksuk ekuk gSA vkns”k 41 fu;e 27 lh ih lh ds izkFkZuk i= ds lkFk ftu nLrkostksa dh QksVks izfris”k djuk pkgk gS mu nLrkostksa ls izFke n’V;k vihykUV dk Lokeh gksuk lkfcr ugha gksrk gSA gLrxr vihy vLFkkbZ fu’ks/kkKk ds vkns”k ds fo:) vihy gS ftlesa U;k;ky; fdlh Hkh izdkj ls izLrqr nLrkost lk{; ds :i esa bl Lrj ij fjdkWMZ ij ysuk mfpr ugha le>rhA vr% izkFkhZ@vihykUV~l dk izkFkZuk i= vkns”k 41 fu;e 27 lifBr /kkjk 151 lh ih lh [kkfjt fd, tkus ;ksX; ik;k tkrk gSA

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6- ifj.kkeLo:i izkFkhZ@vihykUV~l dh vksj ls izLrqr izkFkZuk i=

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vkns”k 41 fu;e 27 lifBr /kkjk 151 lh ih lh [kkfjt fd;k tkrk gSA’’

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Mr. Sandeep Shah, learned counsel appearing for the petitioner assailing the order aforesaid, contended that the learned Court below has committed a serious error of law in rejecting petitioner’s application under Order XLI Rule 27 of the Code, while observing that the documents filed along with the

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(3 of 5)

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[CW-7952/2018]

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application are not relevant as they do not evince that the appellant is the owner of the contentious property. He submitted that the factum as to whether the documents are relevant or not, cannot be a consideration for deciding an application under Order XLI Rule 27 of the Code. Reliability or relevance of the documents can only be seen, once they are taken on record. He further submitted that it is settled proposition of law that the application under Order XLI Rule 27 of the Code has to be decided at the time of final hearing of the appeal and the same cannot be decided during the pendency of the appeal. In this regard, he placed reliance upon judgment of this Court reported in 2013(1) DNJ (Raj.) 304 titled as “Jarnel Singh Vs. Khushi Mohammed & Ors”.

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He further submitted that equally settled is this position that all the documents relating to the events subsequent to the passing of the judgment and decree/order or the orders which have come into existence can be brought on record by way of application under Order XLI Rule 27 of the Code. In support of his argument, he cited the following judgments:

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(1) (Murlidhar Vs. Nand Kishore & Ors.) reported in 2006(2) RLW 1687.

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(2) (Surja Ram Vs. Shri Krishan Lal) reported in RLW 1998

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(1) Raj.

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(3) (Adil Jamshed Frenchman (D) By Lrs. Vs. Sardar Dastur Schools Trust & Ors.) reported in 2005 (3) RLW.

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(4) (Mangi Lal Vs. Smt. Kishni Devi and Ors) reported in RLW 1998(1) Raj.

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Mr. Anurag Shukla, learned counsel appearing for the

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respondent-UIT supported the order of the Court below and

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(4 of 5)

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[CW-7952/2018]

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reiterated that the documents under consideration are hardly relevant for deciding the appeal filed by the appellant.

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Having heard learned counsel for the parties and upon perusal of the material available on record, this Court is of the considered opinion that the order impugned passed by the Court below is unsustainable in the eye of law.

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The premise, for which, the Court below has rejected petitioner’s application that the documents under consideration are not relevant and they do not show ownership of the appellant is per-se unsustainable.

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The consideration for deciding an application under Order XLI Rule 27 of the Code are entirely different. The Court is essentially required to see as to whether the party seeking to produce additional evidence was precluded from filing the same during the course of the proceedings before the Trial Court or the Lower Court, as the case may be.

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Indisputably, the documents sought to be placed along with the application are documents, which have come into being after passing of the order of the Trial Court on 31.08.2012. As such, the Court below ought to have allowed the application and considered the same in accordance with the law. Refusing the leave to place the documents on record, holding them to be not relevant, is like putting the cart before the horse. Unless the documents are taken on record the Court cannot give such finding.

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In view of the settled position of law that the application under Order XLI Rule 27 of the Code is required to be decided at the time of final hearing the appeal and so also the position of law that subsequent event can very well be brought on record by way

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(5 of 5)

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[CW-7952/2018]

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of an application under Order XLI Rule 27 of the Code, the order impugned dated 03.04.2018 cannot be sustained.

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For the reasons aforesaid, writ petition is allowed; the order dated 03.04.2018 is quashed and set-aside; the documents filed along with the petitioner’s application dated 15.03.2017 are ordered to be taken on record.

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Needless to observe that the Trial Court shall consider the relevance, bearing and effect of these documents while deciding the appeal finally. Any observation made by this Court in the order instant shall not influence the decision of the Court below while deciding the appeal on merit.

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The writ petition stands allowed, as indicated above.

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(DINESH MEHTA),J

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Upendra/91

Shobha Bai v. Urban Improvement Trust,Udaipur

Case brief

What is this about?

What did the court decide?

Shobha Bai v. Urban Improvement Trust,Udaipur

Case brief

What is this about?

What did the court decide?

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