THE HON'BLE SRI JUSTICE MUMMINENI SUDHEER KUMAR
CIVIL REVISION PETITION No.23 of 2023
ORDER:
Heard Sri N. Narayana, learned counsel for the petitioner, and Sri D. Jagan Mohan Reddy, learned counsel for the respondents.
2. This civil revision petition is filed against the order, dated 02.12.2022, passed in I.A.No.193 of 2021 in A.S.No.114 of 2018, on the file of the Principal District Judge, Nirmal. The said application was filed under Order XLI Rule 27 read with Section 151 C.P.C. to direct the Mandal Revenue Officer, Dilawarpur Mandal, to appear before the Court to give additional evidence along with the entire records pertaining to Proc.Nos.ROR/28/89, dated 10.11.1998, covered by Ex.A1 Proc.No.B/1495/2005, dated 31.05.2004.
4. The said application was construed as an application filed under Order XLI Rule 27 C.P.C. by the lower appellate Court and the same was dismissed by order dated 02.12.2022, on the ground that the ingredients, as required under Rule 27 Order XLI C.P.C., are not satisfied. If the application in question is to be construed under Order XLI Rule 27 C.P.C., the same is 2 required to be decided along with the main appeal, but under no circumstances, the same can be disposed of independently and the same is required to be considered along with the main appeal.
5. In this regard, the law is well settled and the Hon'ble Apex Court in Union of India v. Ibrahim Uddin and Another1 held as under:
"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."
6. In the circumstances, the order passed by the lower appellate Court disposing of the application filed under Order XLI Rule 27 of C.P.C. independently while keeping the appeal 1 (2012) 8 SCC 148 3 pending is totally unsustainable and the same is required to be decided along with the main appeal.
7. However, from the perusal of the relief that is sought in the application in question i.e., I.A.No.193 of 2021, it appears that the same is an application filed seeking production of the record from the Mandal Revenue Officer, Dilawarpur Mandal, as an additional evidence.
8. Hence, the lower appellate Court is directed to re-appreciate the matter and pass appropriate orders thereon and in case, if the lower appellate Court comes to the conclusion that the said application is in effect as the one to adduce additional evidence, the same can be considered and disposed of along with the main appeal. However, it is made clear that in case, if the lower appellate Court comes to the conclusion that this is an application summoning the Mandal Revenue Officer, Dilawarpur Mandal, the same can be considered separately and appropriate orders be passed accordingly.
9. In the light of the above, the civil revision petition is allowed and the order under revision is set aside and the matter is remanded back to the Principal District Judge, Nirmal, in 4 terms of the observations made hereinabove. There shall be no order as to costs.
Miscellaneous applications, if any, filed in this civil revision petition shall stand closed.
_______________________________ MUMMINENI SUDHEER KUMAR, J Date:21.04.2023 KH 5 THE HON'BLE SRI JUSTICE MUMMINENI SUDHEER KUMAR CIVIL REVISION PETITION No.23 of 2023 Date:21.04.2023 KH