Order XLI Rule 27 CPC Inapplicable In Appeal Against Order Of Temporary Injunction: Allahabad High Court
The Allahabad High Court has held that Order XLI Rule 27 C.P.C., which restricts parties form adducing additional evidence before appellate Courts, is not applicable in appeals against order of temporary injunction by the Trial Court. Referring to Order XLI Rule 27 C.P.C, Justice Subhash Vidyarthi held “the aforesaid Rule applies to filing of additional evidence in appeal, after the...
The Allahabad High Court has held that Order XLI Rule 27 C.P.C., which restricts parties form adducing additional evidence before appellate Courts, is not applicable in appeals against order of temporary injunction by the Trial Court.
Referring to Order XLI Rule 27 C.P.C, Justice Subhash Vidyarthi held
“the aforesaid Rule applies to filing of additional evidence in appeal, after the parties have availed the opportunity to adduce evidence before the trial Court. In the present case, evidence is yet to be produced before the trial Court. Therefore, the provisions of Order XLI Rule 27 C.P.C. will not apply to filing documents before the appellate Court while challenging the validity of an order of temporary injunction.”
Petitioner-plaintiff filed a suit against opposite party, U.P. Avas Evam Vikas Parishad, for perpetual injunction on grounds that they had illegally carved out a plot over pond land which belonged to them. The parishad issued a notice to the petitioner to demolish the illegal construction by them. Thereafter, petitioner prayed in the suit for perpetual injunction against respondent from demolishing any part of petitioner's construction.
A temporary injunction was also sought which was allowed by the Trial Court after the report of Amin. It observed that the fact of illegal construction could only be decided after evidence was led by the parties. Prima facie case was found to be in favour of the plaintiffs and balance of convenience and irreparable loss and injury was also found in their favour.
The Parishad filed an appeal against this order, which was allowed and it was held that there was prima facie case in favour of the plaintiff as there was illegal construction beyond the sanctioned map. Thereafter, petitioner-plaintiff approached the High Court.
Relying on various decisions of the Supreme Court, the Court observed that
“while deciding an appeal under Order XLIII Rule 1(r) and examining the validity of an order of temporary injunction, the appellate Court can examine whether the trial Court has exercised its discretion by ignoring the settled principles of law regulating grant or refusal of interlocutory injunctions. It is a settled principle of law regulating grant or refusal of interlocutory injunctions that the Court has to satisfy itself regarding existence of a prima facie case, balance of convenience and apprehension of irreparable loss and injury to the plaintiff.”
The Court held that the plaintiffs had constructed beyond the limits of the plot allotted to them and therefore, demolition of the illegal construction would not affect any of their rights or cause them irreparable loss.
Holding that Order XLI Rule 27 C.P.C was inapplicable in the present case as no evidence had been adduced before the Trial Court in the first place, the Court held that the evidence which was adduced before the Trial Court by the plaintiff for grant of temporary injunction showed that the construction was illegal.
Accordingly, the petition filed by the plaintiff was dismissed and order in appeal was upheld.
Case Title: Kusum Mishra And Another Versus U.P. Avas Evam Vikas Parishad Thru. Executive Engineer Lko. And 5 Others 2026 LiveLaw (AB) 122
Case citation: 2026 LiveLaw (AB) 122