Andhra Pradesh High Court - Amravati
Unnam Sri Rama Murthy, vs Chintham Venkata Subba ... on 8 November, 2022
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.
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
Civil Appeal No.309 of 2003
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.
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
