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THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER
CIVIL REVISION PETITION No.5773 of 2016
O R D E R:
1. I have heard both sides. This civil revision petition is filed under Article 227 of Indian Constitution to set aside th Orders passed by the learned VII-Addl., District & Sessions Judge, Gudur in IA.No.206 of 2016 in AS.No.116 of 2016.
2. The petitioners herein who are appellants in AS No.116 of 2016 filed petition under Order 41 Rule 27 CPC to receive the documents mentioned in the list as an additional evidence, which petition has taken up for hearing by the learned trial Judge independently and dismissed the same. On perusal of records, which shows that at the first instance, the respondent herein filed suit OS.No.140 of 1999 seeking permanent injunction against the petitioners/appellants which was decreed. Against which, the petitioners preferred AS No.1 of 2006 on the file of Senior Civil Judge, Gudur. Then, the learned Senior Civil Judge, Gudur allowed the appeal suit along with additional evidence petition and remanded the appeal suit to trial Court for fresh disposal as per Judgment, dated 06.03.2012. Against which, the respondent/plaintiff preferred CMA No.728 of 2012 before this Court and then this Court allowed Civil Miscellaneous Appeal and remanded 2 the matter back to the appellate Court with an observation that "accordingly, this CMA is allowed and the matter is remanded back to the appellate Court for fresh disposal of the additional evidence petition in the first instance and then proceed to decide the appeal each in accordance with law. All the miscellaneous petitions pending if any shall stand closed. No costs". Then after establishment of Additional District Court at Gudur, the appeal suit has been made over to VII-Addl., District & Sessions Judge, Gudur and re-numbered as AS No.116 of 2016. As per the Orders of this Court in CMA No.728 of 2012, the learned appellate Judge has independently taken up the petition filed by the petitioner under Order 41 Rule 27 CPC and dismissed the petition.
3. It is the contention of the revision petitioners that the documents which they filed along with petition are essential to prove their case, which wrongly dismissed by the trial Court. During the course of hearing of this civil revision petition, the learned Advocates representing both parties fairly submitted that additional evidence petition has to be disposed of along with appeal suit and not independently. For which, the learned Advocate for the revision petitioners also relied on a decision in State of Rajasthan, Appellant 3 vs. T.N.Sahani and others 1 . Respondents, wherein it is held at para 4, which reads as under:
"It may be pointed out that this Court as long back as in 1963 in K.Venkataramiah v.Seetharama Reddy 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 pronounced the judgment on the state of the record as it was, and so, additional evidence could not be required 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 entirely for the court to consider at the time of hearing of the appeal on additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41 Rule 27 (b) CPC can be invoked. So the application under 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 application 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 now consider the appeal and the application and decide the matter afresh in accordance with law".
4. The learned Advocate for the revision petitioners also relied on a decision in Md.Yousufiddin vs.Md.Masiuddin and others 2 , wherein this Court held that application for additional evidence to be considered along with the appeal itself as then only the appellate Court can appreciate the 1 (2001) 10 Supreme Court Cases 619 2 2011 (3) ALT 392 4 relevancy of the evidence sought to be produced and decide on the question whether petitioner satisfies the ingredients of Order 41 Rule 27 CPC.
5. On perusal of ratio laid down by the Hon'ble Apex Court and this Court in the decisions relied on by the learned Advocate for the revision petitioner, which makes it clear that application filed under Order 41 Rule 27 CPC to receive additional evidence has to be dealt with along with appeal suit not independently by following procedure laid down under law. Though, the learned Judge in CMA No.728 of 2012 observed that additional evidence petition has to be disposed of first instance and then proceed to decide the appeal, which doesn't mean that it has to be decided independently. Therefore, without going into the merits of the case, this Court is of an opinion that the petition filed by the petitioner under Order 41 Rule 27 CPC shall be disposed of along with appeal suit.
6. The Civil Revision Petition is allowed. The Orders passed by the learned VII-Addl., District & Sessions Judge, Gudur in IA.No.206 of 2016 in AS.No.116 of 2016 is hereby set aside with a direction to restore the IA.No.206 of 2016 to file and dispose of the same along with AS.No.116 of 2016 by following the procedure laid down under Order 41, Rule 27 CPC. The learned VII-Addl., District & Sessions 5 Judge, Gudur is requested to dispose of the appeal suit as expeditiously as possible within Three (3) months from the date of receipt of this Order. No order as to costs.
___________________________________ JUSTICE BANDARU SYAMSUNDER Date :11.08.2022 Bsv 6 THE HON'BLE SRI JUSTICE BANDARU SYAMSUNDER C.R.P.No.5773 of 2016 Date : 11.08.2022 Bsv