JAINULABEDIN ABBASALI SAIYED vs NOORBANU IBRAHIM KURESHI

C/SCA/14374/2026 JUDGMENT DATED: 16/10/2026
(GJHC240724932026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14374 of 2026

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J. SHELAT

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Approved for Reporting Yes No
√
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JAINULABEDIN ABBASALI SAIYED
Versus
NOORBANU IBRAHIM KURESHI & ORS.
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Appearance:
MR SP MAJMUDAR FOR MR SHEGUN B CHOKSHI(12790) for the
Petitioner(s) No. 1
MR AR SHAH(7768) for the Respondent(s) No. 1,10,2,3,4,5,6,7,8,9
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT

Date : 16/10/2026
JUDGMENT
1. Heard Mr.S.P.Majmudar, learned advocate for
Mr.Shegun Chokshi, learned advocate for the petitioner and
Mr.A.R.Shah, learned advocate for the respondents.
2. Rule returnable forthwith. Mr.Shah, learned advocate
waives service of Rule for the respondents.
3. The present writ application is filed under Article 227 of
the Constitution of India, seeking following relief :-
“A. YOUR LORDSHIPS may be pleased to issue a
writ of certiorari and/or a writ in the nature of
certiorari and/or any other appropriate writ, order
or direction, quashing and setting aside the order
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C/SCA/14374/2026 JUDGMENT DATED: 16/10/2026
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dated 31.08.2026 passed below Exh. 12 in Regular
Civil Appeal No. 276 of 2025 by the learned 6
Additional District Judge, Vadodara (Annexure A to
the present petition), and further be pleased to
allow the application dated 16.06.2026 below Exh,
12, in the interest of justice;
B. During the pendency and final disposal of the
present petition, YOUR LORDSHIPS may be pleased
to stay the impugned order dated 31.08.2026,
passed below Exh. 12 in Regular Civil Appeal No.
276 of 2025 by the learned 6th Additional District
Judge, Vadodara (Annexure A to the present
petition)and be pleased to stay further proceedings
of Regular Civil Appeal No. 276 of 2025, in the
interest of justice;”
SUBMISSIONS OF THE PETITIONER :
4. At the outset, Mr.Majmudar, learned advocate for the
petitioner, would submit that the impugned application filed
below Exh.12 in Regular Civil Appeal No.276 of 2025 came to
be rejected by the appellate Court, though the same was filed
under Order 41 rule 27 of CPC, inasmuch as the impugned
application ought to have been heard and decided by the
appellate Court at the time of final hearing of the said Regular
Civil Appeal.
4.1 In support of his argument, Mr.Majmudar, learned
advocate, would refer and rely upon the following decisions of
the Hon’ble Apex Court as well as this Court wherein a similar
factual situation, where application under Order 41 rule 27 of
CPC came to be rejected by the appellate Court, and having
challenged such order either before this Court or before the
Hon’ble Apex Court as the case may be, the view taken by the
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Court that such application requires to be head and decided
along with the appeal.
(i) Union of India Vs. Ibrahim Uddin and another -
(2012) 8 SCC 148.
(ii) Mukulbhai Rajendra Thakor, Trustees of Shri
Sad Vidya Mandal Vs. Upendrabhai Anupam Joshi -
2018(0) AIJEL-HC-239686 : 2019(0) AIR (Guj.) 42.
(iii) State of Rajasthan Vs. T.N. Sahani - 2000(0)
AIJEL-SC 29606 : 2001(10) SCC 619.
4.2 Making the above submissions, Mr.Majmudar, learned
advocate, would request this Court to remand the matter back
to the appellate Court, with a direction to decide the
impugned application so filed under Order 41 Rule 27 of CPC
along with the appeal.
SUBMISSIONS OF THE RESPONDENTS :
5. Per contra , Mr.Shah, learned advocate for the
respondents is unable to dispute the ratio laid down by the
Hon’ble Apex Court in the cited decisions but would contend
that there is no merit in the application, inasmuch as
ingredients of Order 41 rule 27 of CPC was not made in the
impugned application. Nonetheless, learned advocate for the
respondents would leave to the discretion of this Court in
regards to remand of the matter back to the appellate Court,
thereby the impugned application may be decided at the time
of hearing the said appeal. He would place reliance upon
following decision in support of his argument.
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C/SCA/14374/2026 JUDGMENT DATED: 16/10/2026
(GJHC240724932026)
(i) Malayalam Plantations Ltd. V/s State of Kerala
and another - (2010) 13 SCC 487.
5.1 By making the above submissions, Mr.Shah, learned
advocate for the respondents would request this Court to pass
an appropriate order.
ANALYSIS :
6. Having heard learned advocates for the respective
parties, and so also issue germane in the application,
according to this Court, is squarely covered by the decisions
of the Hon’ble Apex Court as well as by this Court in the case
of (i) Ibrahim Uddin (supra) , wherein held thus :-
“ 52. Thus, from the above, it is crystal clear that
application for taking additional evidence on
record at an appellate 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 required to
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 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 to be ignored.
(ii) Malayalam Plantations (supra) , wherein held
thus:-
“ 16. If any petition is filed under Order 41
Rule 27 in an appeal, it is incumbent on the
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part of the appellate Court to consider at the
time of hearing the appeal on merits so as to
find out whether the documents or evidence
sought to be adduced have any
relevance/bearing in the ssues involved . It is
trite to observe that under Order 41, Rule 27,
additional evidence could be adduced in one of the
three situations, namely, (a) whether the trial Court
has illegally refused the evidence although it ought
to have been permitted; (b) whether the evidence
sought to be adduced by the party was not
available to it despite the exercise of due diligence;
(c) whether additional evidence was necessary in
order to enable the Appellate Court to pronounce
the judgment or any other substantial cause of
similar nature.
17. It is equally well-settled that additional
evidence cannot be permitted to be adduced
so as to fill in the lacunae or to patch up the
weak points in the case. Adducing additional
evidence is in the interest of justice . Evidence
relating to subsequent happening or events which
are relevant for disposal of the appeal, however, it
is not open to any party, at the stage of appeal, to
make fresh allegations and call upon the other side
to admit or deny the same. Any such attempt is
contrary to the requirements of Order 41 Rule 27 of
CPC. Additional evidence cannot be permitted at
the Appellate stage in order to enable other party
to remove certain lacunae present in that case.”
(iii) Mukulbhai Rajendra Thakor, Trustees of
Shri Sad Vidya Mandal (supra) , wherein held thus:
5.1 Thus, it is clear from the above
pronouncements of the Apex Court that the
application for taking additional evidence
when made at the appellate stage, it is to be
considered at the stage after appreciation of
the evidence on record. In another words, it
is to be kept pending till the hearing of the
appeal so that the appellate court could
consider at the time of deciding appeal as to
whether the additional evidence sought to be
produced are necessary to be considered and
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are relevant. The discretion to allow or reject
the additional evidence could be judicially
exercised only at the stage of finally
considering the appeal. In view of the above
position clearly emerging from Ibrahim Uddin
learned Principal District Judge, Bharuch,
ought not to have rejected the applications.
Therefore, in view of law laid down in
Malyalam Plantations Ltd. and in Ibrahim
Uddin , learned Additional District Judge, Bharuch,
committed an error in rejecting the application
Exh.29 of the petitioners.
6. The application below Exh.29 was under Order
XLI Rule 27 for additional evidence filed in the
appeal proceedings and therefore was required to
be considered at the time of deciding the appeal. It
is, therefore, for the court below to consider and
take decision one way or other as to the
applicability of the same which shall be at the time
of deciding the appeal. The appeal shall be decided
with reference to the conclusion which the court
below may arrive at in respect of Exh.29
application. The court below shall take a decision
as per the mandate of the provisions of Order XLI
Rule 27, CPC.
(iv) T.N. Sahani (supra) , wherein held thus :-
“3. The application filed under Order 6, Rule 17
came to be dismissed. Taking that aspect into
consideration, the High Court dismissed that
application under Order 41, Rule 27 also as in
its view, where the amendment application of
the appellant seeking amendment of the
Memorandum of Appeal in respect of the
documents sought to be placed on records
was disallowed , "how can the said documents be
required for pronouncing the judgment or for any
other substantial cause".
4. It may be pointed out that this Court as long
back as in 1963 in K. Venkataramiah v.
Seetharama Reddy, AIR 1963 Supreme Court
1526 , pointed out the scope of unamended
provision of Order 41, Rule 27(c) that though there
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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, it could
not be required additional evidence 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 be
Court to look into the documents and for that
purpose amended provision of Order 41, Rule
27(b), C.P.C. 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 applications 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
not consider the appeal and the application and
decide the matter afresh in accordance with law.”
(emphasis supplied)
7. In light of aforesaid, as held by the Hon’ble Apex Court
as well as by this Court in the above referred decisions, and so
also, there would remain consensus ad-idem between the
learned advocates for the respective parties that, if the matter
is order to be remanded back, then the impugned application
requires to be heard and decided along with the appeal. It
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C/SCA/14374/2026 JUDGMENT DATED: 16/10/2026
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would be gainsaid that whenever an application filed by
parties to the appeal under Order XLI Rule 27 of CPC
requesting the appellate Court to allow such party to submit
additional evidence, such application needs and requires to be
heard along with appeal but not prior thereto.
8. As in the case on hand, the appellate Court unmindful of
afore stated position of law heard and decided the impugned
application filed in the aforesaid provision of law. To that
extent, interference of this Court requires, so gross error of
law committed can be cured.
9. For the forgoing reasons, the impugned order dated
th
31.08.2026 passed by the 6 Additional District Judge,
Vadodara below Exh.12 in Regular Civil Appeal No.276 of
2025 is hereby quashed and set aside. Consequently, the
impugned application filed below Exh.12 in the aforesaid
appeal, is restored back on its file and to be heard and
decided along with the Regular Civil Appeal No.276 of 2025 in
accordance with law, without being influenced by any of the
observations so made by the appellate Court while passing the
order impugned in the present writ application and by this
Court in its any order including present one.
10. It is further made clear that this Court has neither gone
into nor examined the merit of the impugned application as
the impugned order is quashed and set aside due to the
aforesaid reasons. So, the appellate Court shall decide it
afresh, albeit in accordance with law.
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C/SCA/14374/2026 JUDGMENT DATED: 16/10/2026
(GJHC240724932026)
11. In view of aforesaid conclusion, the present writ
application is partly allowed to the aforesaid extent. Interim
relief, if any, granted earlier stands vacated forthwith. Rule is
made absolute, accordingly.
(MAULIK J. SHELAT, J)
GAURAV J THAKER
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