THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No.1271 of 2021
ORDER:
This Civil Revision Petition is filed under Article 227 of the Constitution of India against the orders dated 19.04.2021 dismissing the petition in I.A.No.251 of 2020 in A.S.No.69 of 2019 on the file of the Court of I Additional District Judge, Nellore filed under Order 41 Rule 27 of CPC and Section 151 CPC to receive the following documents as additional evidence and for examination of the witnesses including revenue officials.
1) Original pass book,
2) mortgage deed No.1819/2003 dated 01.12.2003,
3) cancellation deed No.1049/2013 dated 27.04.2013,
4) tax receipt dated 03.05.1992,
5) tax receipt dated 17.07.1994,
6) certified copy of sale deed 484/1979 dated 19.06.1979,
7) certified copy of encumbrance certificate and
8) copy of bank account statement regarding crop loan.
2. The petitioner claims that he has filed a claim application in the execution petition in E.P.No.25 of 2003 in O.S.No.6 of 2003 and the same was dismissed and having aggrieved by the order of dismissal, appeal in A.S.No.69 of 2019 was filed and in the said appeal, the present petition is filed to receive the additional evidence, but the appellate Court has erroneously dismissed the petition by disposing of the petition independently even before hearing the appeal. 2
CRP No.1271 of 2021
3. Heard the learned counsel for the petitioner. There is no representation for the respondents on the earlier occasion on 27.10.2022 or today i.e. 08.11.2022 inspite of posting the matter under the caption 'for orders'.
4. The learned counsel for the petitioner submitted that the appellate Court ought to have heard the application along with the appeal as per the settled law and placed reliance on the decision of the Supreme Court.
5. In Malayalam Plantations Ltd. Vs State of Kerala and another 1 dated 09.11.2010 wherein at para 11 held as follows:
11) 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. It is equally well-settled that additional evidence cannot be permitted to 1 Civil Appeal No.309 of 2003 3 CRP No.1271 of 2021 be adduced so as to fill in the lacunae or to patch up the weak points in the case.
6. After making such observations, the Supreme Court further observed that it is for the High Court to consider and take a decision on a separate application filed under Order 41 Rule 27 CPC and decide the appeal with reference to the conclusion in the said petition.
7. As can be seen from the order impugned in the revision, even before hearing the appeal, this petition was heard and disposed. As such, without going into the merits of the petition as to whether the petitioner is entitled to the relief claimed therein, this Court is of the view that the impugned order is liable to be set aside and the appellate Court shall hear the appeal on the petition under Order 41 Rule 27 CPC together and take a decision on the application and dispose of the appeal as per the decision therein. In the event, that the appellate Court comes to the opinion that additional evidence is required, it may take appropriate step as provided under Order 41 Rule 28 CPC, for which there is no need for the petitioner to make any separate prayer and it is for the appellate Court to take a decision as to what mode is to be adopted in any given case.
8. As such, the revision petition is allowed setting aside the order dated 19.04.2021 in I.A.No.251 of 2020 in A.S.No.69 of 2019 on the file of the Court of I Additional District Judge, Nellore with a direction to follow the observations of this Court indicated here above. 4
CRP No.1271 of 2021 There shall be no order as to costs.
Pending miscellaneous petitions, if any, shall stand closed.
_________________ B.S.BHANUMATHI, J Dt. 08-11-2022 PNV