PARIKH ASSOCIATES vs LATE KANCAHANLAL AMBALAL TAMBOLI THROUGH LEGAL HEIRS
- Court
- Gujarat High Court
C/SCA/11759/2026 JUDGMENT DATED: 23/10/2026
(GJHC240352282026)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11759 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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PARIKH ASSOCIATES
Versus
LATE KANCAHANLAL AMBALAL TAMBOLI THROUGH LEGAL HEIRS &
ORS.
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Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1
DECEASED LITIGANT for the Respondent(s) No. 1
MR. NAYAN N BARAIYA(15858) for the Respondent(s) No. 1.1,1.2
NOTICE SERVED for the Respondent(s) No. 1.3,1.4
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 23/10/2026
JUDGMENT
1. Heard Mr. Jigar P. Raval, learned advocate for the
petitioner and Mr. Nayan N. Bariya, learned advocate for
the respondents.
2. The present writ application is filed under Article
227 of the Constitution of India, seeking following reliefs:-
“A. Your Lordship may be pleased to admit and allow the petition.
B. Your Lordship may be pleased to quash and set aside the
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impugned order dated 01/04/2026 at ANNEXURE-A passed by the
Hon'ble District Court, Vadodara, and further allow the petitioner
to produce the additional documents before the Appellate Court.
C. During the pendency and till the final disposal of this petition,
Your Lordship may be pleased to stay the further implementation
and execution of the order dated 01/04/2026 at ANNEXURE-A
passed by the Hon'ble District Court, Vadodara, and be further
pleased to stay the further proceedings of Regular Civil Appeal No.
35 of 2021 before the Hon'ble District Court, Vadodara.
3. At the outset, Mr. Raval, learned advocate for the
petitioner, would submit that the impugned application
filed below Exh. 18 in Regular Civil Appeal No. 35 of 2021
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.
3.1 In support of his argument, Mr. Raval, learned
advocate, would refer and rely upon the following
decisions of the Hon’ble Apex Court as well as this Court
wherein in 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
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as the case may be, the view taken by the Court that such
application requires to be heard and decided along with
the appeal.
(i) Union of India Vs. Ibrahim Uddin and
another reported in (2012) 8 SCC 148 .
(ii) Mukulbhai Rajendra Thakor, Trustees of
Shri Sad Vidya Mandal Vs. Upendrabhai
Anupam Joshi reported in 2018(0) AIJEL-HC-
239686/ 2019(0) AIR (Guj.) 42 .
(iii) State of Rajasthan Vs. T.N. Sahan i reported
in 2000(0) AIJEL-SC 29606/2001(10) SCC 619 .
(iv) Premilaben Narendrabhai Jhadav & Ors. Vs.
Jeru Manekshaw Contractor and Anr . in
SCA/17886/2015.
4. Making the above submissions, Mr. Raval, 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 alongwith the appeal.
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5. Per contra , Mr. Nayan N. Bariya, 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,
inasmcuh 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 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.
(i) Malayalam Plantations Ltd. V/s State of
Kerala and another reported in (2010) 13 SCC
487.
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
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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 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 issues 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
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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 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
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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 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.”
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
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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 would be gainsaid that
whenever an application filed by parties to the appeal
under Order 41 Rule 27 of CPC requesting the Appellate
Court to allow such party to submit additional evidence,
such application needs and requires to be heard
alongwith 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
01.04.2026 passed by the 6th Additional District &
Sessions Judge, Vadodara below Exh. 18 in Regular Civil
Appeal No. 35 of 2021 is hereby quashed and set aside.
Consequently, the impugned application filed below
Exh.18 in the aforesaid appeal is restored back on its file
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and to be heard and decided along with the Regular Civil
Appeal No. 35 of 2021 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.
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.
Direct service is permitted.
(MAULIK J.SHELAT,J)
SHAHANAZ
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