Judge vs Unknown
2022 Latest Caselaw 1808 AP

Citation : 2022 Latest Caselaw 1808 AP
Judgement Date : 18 April, 2022

Andhra Pradesh High Court - Amravati

Judge vs Unknown on 18 April, 2022

            THE HON'BLE SRI JUSTICE NINALA JAYASURYA

               CIVIL REVISION PETITION No.651 of 2022

ORDER:

Challenging the Order dated 02.03.2022 passed in I.A.No.47 of

2022 in A.S.No.12 of 2019 on the file of the Court of V Additional District

Judge, Allagadda, Kurnool District, the present Civil Revision Petition is

filed.

2. Heard learned counsel for the petitioner Mr.Challa Siva Sankar and

the learned counsel for the respondent/Caveator Mr.G.Sravan Kumar.

3. The petitioner is the appellant in the above said appeal, which was

filed aggrieved by the dismissal of suit in O.S.No.239/2005 on the file of

the Court of Junior Civil Judge, Allagadda filed by him seeking permanent

injunction against the respondent. In the appeal, the petitioner/appellant

filed I.A.No.47 of 2022 under Order XLI, Rule 27 R/w Section 151 of CPC

to receive additional evidence and mark the same. The said application

was opposed by the respondent. By an Order dated 02.03.2022 the

learned Appellate Judge dismissed the said application. Hence, the present

Revision Petition.

4. The learned counsel for the petitioner inter alia submits that the

learned Appellate Court committed a material irregularity in dismissing the

application, seeking to receive additional evidence, independently, instead

of considering the same along with the appeal. In support of his

contention, the learned counsel for the petitioner relied on the Judgments

of the Hon'ble Supreme Court and also this Court.

5. Per contra, the learned counsel for the respondent supported the

Order under Revision and submits that there are no merits warranting

interference by this Court.

NJS, J Crp_651_ 2022

6. The point for consideration with regard to the adjudication of

application filed under Order XLI, Rule 27 of CPC is no longer res integra

as contended by the learned counsel for the petitioner and the following

Judgments relied on by him would go to show that the said application is

to be considered at the time of adjudicating the main appeal.

7. In the State of Rajasthan v. T.N. Sahani1, the Hon'ble Supreme

Court was dealing with an appeal filed against the Orders of High Court of

Rajasthan. The High Court dismissed an application filed under Order XLI,

Rule 27 CPC along with another application filed under Order VI, Rule 7

CPC seeking amendment of plaint before hearing of the main appeal. The

Hon'ble Supreme Court inter alia opined that the application under Order

XLI, Rule 27 CPC should have been decided along with the appeal and

that taking a view on the said application before hearing of the appeal

would be inappropriate. The Hon'ble Supreme Court while setting aside

the Order of the High Court restored the said application to file and

directed the High Court to consider the appeal and the application, and

decide the matter afresh, in accordance with law.

8. In Malyalam Plantations Ltd. v. State of Kerala and another2

the Hon'ble Supreme Court held that if any application is filed under Order

XLI, Rule 27 CPC in an appeal, it is incumbent on the part of the appellate

Court to consider the same 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 on the issues involved.

1 (2001) 10 Supreme Court Cases 619 2 AIR 2011 Supreme Court 559

NJS, J Crp_651_ 2022

9. In a recent Judgment, the Hon'ble Supreme Court in G.Shashikala

(Died) through L.Rs v. G.Kalavathi Sai (Died) through L.Rs3 was

dealing with a Judgment of the High Court wherein it allowed application

seeking permission to file additional evidence, admitted the documents

and held that impact of the additional evidence will be examined while

hearing the main appeal. The Hon'ble Supreme Court set aside the said

order and remanded the matter to the High Court with a direction to

dispose of the applications filed under Order 47, Rule of CPC keeping in

view the law laid down in the decisions referred to therein.

10. The learned Single Judge of this Court after a detailed survey of the

Case Law on the subject, in a decision rendered in C.R.P.Nos.770 and 803

of 2020 dated 15.12.2020 held that the Court below committed a grave

mistake in considering the application filed under Order XLI, Rule 27 CPC,

at the first instance, without taking it for hearing along with the main

appeal and set aside the Order under Revision.

11. State Bank of India v. Zeenath X-Ray & ECG Clinic & Ors.,4 is

a case relating to non-production of documents which are in the custody

of a party at the time of trial of the suit and the Appellate Court rejected

to receive the same as additional evidence. The learned Judge while

opining that the Order XLI, Rule 27 CPC mandates that the parties to an

appeal shall not be entitled to produce additional evidence whether oral or

documentary in the appellate Court, however that under certain

exceptional circumstances, the appellate Court may allow such evidence or

documents to be produced.



3 AIR 2019 SCC 2631
4 2007 SCC OnLine AP 309 = (2007) 2 AP LJ 225

                                                                             NJS, J
                                                                      Crp_651_ 2022



12.    In            Vadlapatla        Sivaramakrishna           Rao            v.

Sri Venugopalaswamyvari Temple, Kakinada5 the learned Judge

inter alia held that adducing fresh evidence or additional evidence in

appeal is not a matter of right and unless the ingredients mentioned in

Rule 27 of Order 41 CPC are satisfied, the appellate Court would not give

permission to a party to adduce additional evidence in appeal.

13. Above two decisions relied on by the learned counsel for the

respondent, is of no aid in the facts of the present case.

14. In the light of the Judgments of the Hon'ble Supreme Court referred

to supra, this Court has no hesitation to hold that the Order under

Revision is unsustainable.

15. The Civil Revision Petition is accordingly, allowed, by setting aside

the Order dated 02.03.2022 passed in I.A.No.47 of 2022 in