Bombay High Court

RAVIKUMAR JETHAPPA KURNEversusBHARAT KISAN MEKALE AND ORS

Disposal: Disposed Off

Holding

An application under Order 41 Rule 27 must be decided at the time of final disposal of the appeal and cannot be entertained at an interlocutory stage.

Summary

The petitioner, who was the original plaintiff in a special civil suit for injunction, sought to adduce additional evidence in Regular Civil Appeal No. 276/2017 by filing an application under Order 41 Rule 27 of the CPC. The appellate court rejected the application, prompting a writ petition challenging that order. The respondents argued that secondary evidence cannot be led without permission and that the application must be decided during the final hearing of the appeal. The High Court, relying on the Supreme Court’s decision in State of Rajasthan v. T. Sahani, held that such applications must be dealt with at the time of final disposal and not at an interlocutory stage. Consequently, the impugned order was quashed and the appellate court was directed to consider the application independently at the final disposal of the appeal within six months.

Issues considered

Whether an application under Order 41 Rule 27 for adduction of additional evidence may be decided at the interlocutory stage of an appeal.
Whether the rejection of the application by the appellate court is legally valid.
Whether the appellate court must decide the application at the time of final disposal of the appeal.

Legislation cited

Code of Civil Procedure, 1908 — s. Order 41 Rule 27

Subjects

Order 41 Rule 27
secondary evidence
appellate court
injunction
additional evidence
interlocutory stage
final disposal
CPC

Judgment

                                                          143 WP 1928 OF 2024.odt

            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIRCUIT BENCH AT KOLHAPUR
                    CIVIL APPELLATE JURISDICTION

                  143 WRIT PETITION NO. 1928 OF 2024

                       RAVIKUMAR JETHAPPA KURNE
                                   VERSUS
                     BHARAT KISAN MEKALE AND ORS
                                      ...
  Advocate for Petitioner : Mr. Nilesh Joshi (through V.C.) i/by Mr. Prasad
                             Pradeep Kulkarni
Advocate for Respondent No. 1 : Mr. Hrishikesh Sopan Shinde (through V.C.)
                        a/w Adv. Neha G. Deshpande
                                      ...
                      CORAM               : SHAILESH P. BRAHME, J.
                      DATE                 : 28.09.2026
PER COURT :

       Heard both sides.

2.    The petition is directed against the order dated 06.01.2024 passed
below Exh. 69 in Regular Civil Appeal No. 276/2017.

3.    The petitioner is the original plaintiff who had filed Special Civil Suit
No. 22/2014 for injunction.     He was non suited on 15.11.2017 and he
approached Appellate Court in Regular Civil Appeal No. 276/2017. He
wanted to adduce additional evidence, therefore, application Exh. 69 was
submitted under Order 41 Rule 27 of the Code of Civil Procedure, which is
objected by the respondents. By impugned order it came to be rejected.

4.    The counsel for the petitioner has pointed out the earlier decision
rendered in Regular Civil Appeal No. 276/2017 on 26.03.2019 remanding
the matter to the Trial Court which was subjected to challenge in Appeal
from Order before this Court. It was disposed of vide order dated
02.03.2022 granting     liberty to re-agitate the issue before the Appellate
Court. It is submitted that in view of the liberty granted, application Exh. 69
should have been allowed.

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                                                            143 WP 1928 OF 2024.odt

5.      Learned counsel for the respondents would support the impugned
order. He would submit that unless there is a permission, the additional
secondary evidence cannot be led. It is further submitted that application
under Order 41 Rule 27 has to be decided within course of final hearing of
the appeal.

6.      It is a trite law as laid down by the Supreme Court in the matter State
of Rajasthan v. T. Sahani & Ors., (2001) 10 SCC 619 , that application under
Order 41 Rule 27 has to be dealt with at the time of final disposal of the
appeal and it cannot be decided at interlocutory stage, which has been done
by the appellate Court, in present case.

7.      The Appellate Court can take appropriate decision over application
Exh. 69 in accordance with law at the time of hearing of Regular Civil
Appeal No. 276/2017. The propriety demands that the documents, which
are sought to be produced be dealt with simultaneously on the merits of the
matter.

8.      It would be open for the parties to agitate their claim in respect of the
probative value of the documents relying upon the judgments. This Court is
not expressing any view as to whether the permission is necessary for
leading secondary evidence or the documents sought to be produced are
admissible in evidence. It would be the look out of the Appellate Court.

9.      The writ petition is disposed of by quashing the impugned order and
directing the Appellate Court to deal with application Exh. 69 independently,
on its merits, at the time of final disposal of Regular Civil Appeal No.
276/2017.      The Appellate Court shall decide Regular Civil Appeal No.
276/2017 within a period of six months from today.



                                        ( SHAILESH P. BRAHME, J.)

mkd/-


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