M/S. Polisetty Somasundaram vs Thummuluri Samuel Another
2022 Latest Caselaw 6529 AP

                                                                   BSS,J
                                                  C.R.P.No.2085 of 2016

                                  1

             HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

                       C.R.P.No.2085 of 2016
ORDER:

This Civil Revision Petition is filed by the

petitioner/respondent under Article 227 of Constitution of India

against the orders passed by the learned Principal District Judge,

Ongole in I.A.No.2382 of 2015 in A.S.No.143 of 2012 wherein and

whereby the learned Judge allowed the petition filed by the

respondents/appellants under Order XXVI Rule 9 read with Order 41

Rule 27 and Section 151 CPC and appointed an advocate -

commissioner to visit suit schedule property and localize the

property with reference to Ex.A1 to Ex.A4 with the assistance of

Mandal Surveyor.

2. The case of the respondents/appellants in brief before the

appellate Court is that they filed appeal against the judgment and

decree in O.S.No.19 of 2007 on the file of the Court of Senior Civil

Judge, Addanki, which suit they filed for declaration and

consequential injunction and the same was dismissed. They

submits that they purchased Ac.0.35 cents of land in Sy.No.549/C

under Ex.A2 and then sold part of the land to various persons under

Ex.A3, Ex.A4 by retaining remaining extent of the land, but due to BSS,J C.R.P.No.2085 of 2016

oversight they have not filed sale deed dated 12.07.1973 before

the trial Court and as per the said sale deed still they have got suit

property. They submits that NH-5 authorities have acquired the

land for extending the road, thereby they lost 101.20 sq. meters of

the site, due to that compensation also awarded to them and as

petitioners/respondents tried to grab the lands, they filed suit.

The main contention of respondents/appellants is that Ex.A1 to

Ex.A4 and sale deed dated 12.07.1973 discloses that they are still

having Ac.17½ cents of site on the northern side apart from

property sold by them, which site has to be localized with the help

of Mandal Surveyor then only true facts will come to light and prays

to appoint an advocate - commissioner to localize the site with the

help of Mandal Surveyor basing on Ex.A1 to Ex.A4.

3. The revision petitioner/respondent filed counter before the

appellate Court denying the averments in the affidavit filed in

support of the petition filed by the respondents. It is the

contention of revision petitioner that respondents have filed

petition under Order 41 Rule 27 CPC in the appeal to lead

additional evidence, which cannot be received at all to fill up the

lacunas. He submits that in spite of legal notice sent by him,

respondents managed and got compensation amount due to that BSS,J C.R.P.No.2085 of 2016

they filed W.P.No.4313 of 2015 before this Court for directing the

authorities to pay the amount to him and then, within three days

NH-5 authorities paid the compensation amount of Rs.1,30,735/-.

The main contention of revision petitioner is that in the appeal

suit, disputed property cannot be localized as there is no

controversy regarding the extents of the land and acquisition of the

land and there is no need to appoint advocate commissioner. They

prays to dismiss the petition.

4. The learned appellate Judge after hearing both sides,

allowed the petition filed by the respondents/appellants and

appointed advocate commissioner to localize 17 ½ cents as per

Ex.A1 to Ex.A4 and sale deed dated 12.07.1973 with the assistance

of Mandal Surveyor and Surveyor of NH-5, by observing that

appointment of advocate commissioner is just and necessary,

thereby disputes can be settled and Court can have clarity.

5. Aggrieved by the orders passed by the appellate Court, the

present Civil Revision Petition is filed by the

petitioner/respondent/defendant stating that orders of the

appellate Court is erroneous on facts and law and the same is not

sustainable. He submits that appellate Court having come to the

conclusion that petitioner as well as respondents claimed the same BSS,J C.R.P.No.2085 of 2016

property and the boundaries mentioned in the schedule are one

and the same, ought to have dismissed the petition. He submits

that no application under Order XLI Rule 27 is filed by

respondents/appellants to receive additional evidence of

registered sale deed dated 12.10.1973 and appointment of an

advocate commissioner at appellate stage, cannot be allowed to

identify the land and trial Court failed to follow the ratio laid down

by this Court in P.Urmila and Others v. K.Kourava Swamy and

Others1. He prays to allow the revision petition and dismiss the

petition filed by the respondents.

6. I have heard learned counsel for the revision petitioner.

7. It is the contention of the learned counsel for the revision

petition that appellate Judge ordered for appointment of advocate

commissioner which amounts to allowing the additional evidence

which has to be considered only at the time of disposal of main

appeal suit, not independently. He prays to allow the revision

petition and dismiss I.A.No.2382 of 2015 in A.S.No.143 of 2012.

8. Now, the issue that emerges for consideration by this Court

is: "Whether the order under challenge is sustainable, tenable

2005(1) ALT 811 BSS,J C.R.P.No.2085 of 2016

and whether the same warrants any interference of this Court

under Article 227 of Constitution of India?"

9. POINT: Before going to the merits of the case, it would be

beneficial to quote Order XLI Rule 27 CPC, which reads as under:

"27. Production of Additional Evidence in Appellate Court.

(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."

BSS,J C.R.P.No.2085 of 2016

10. In State of Rajasthan, Appellant Vs. T.N.Sahani and

others2 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".

11. In Md.Yousufiddin vs. Md.Masiuddin and others3, wherein

this Court held that application for additional evidence to be

(2001) 10 SCC 619 BSS,J C.R.P.No.2085 of 2016

considered along with the appeal itself then only the appellate

Court can appreciate the relevancy of the evidence sought to be

produced and decide on the question whether petitioner satisfies

the ingredients of Order XLI Rule 27 CPC.

12. On perusal of ratio laid down by the Hon'ble Apex Court and

this Court in the decisions referred supra, which makes it clear

that application filed under Order XLI Rule 27 CPC to receive

additional evidence has to be dealt with along with appeal suit, not

independently by following the procedure laid down under law. In

the present case, admittedly respondents being appellants filed

petition before the appellate Court under Order XXVI Rule 9 read

with Order XLI Rule 27 and Section 151 CPC praying the Court to

appoint advocate commissioner on the ground that they failed to

file sale deed dated 12.07.1973 before the trial Court and prays to

localize the disputed site with reference to Ex.A1 to Ex.A4 and as

per recitals in sale deed dated 12.07.1973. The said prayer of

respondents/appellants certainly amounts to prayer for receiving

additional evidence though the petition is filed for appointment of

an advocate commissioner as they are seeking the relief basing on

the contents of the documents, which they failed to file before the

2011 (3) ALT 392 BSS,J C.R.P.No.2085 of 2016

trial Court. The learned appellate Judge without considering the

provisions of Order XLI Rule 27 CPC and before hearing the main

appeal suit independently disposed of I.A.No.2382 of 2015, which is

not sustainable under law. Therefore, orders passed by learned

appellate Judge independently considering the petition filed under

Order XXVI Rule 9 read with Order XLI Rule 27 CPC are not

sustainable in law, which are liable to be set aside.

13. In the result, the Civil Revision Petition is allowed. The

orders passed by the learned Principal District Judge, Ongole in

I.A.No.2382 of 2015 in A.S.No.143 of 2012 are hereby set aside with

a direction to restore I.A.No.2382 of 2015 to file and dispose of the

same along with A.S.No.143 of 2012 by following the procedure laid

down under Order XLI Rule 27 CPC. The learned Principal District

Judge, Ongole is requested to dispose of the appeal suit as

expeditiously as possible, preferably within three (03) months from

the date of receipt of copy of this order. No order as to costs.

Consequently, miscellaneous petitions pending if any, shall stand

closed.

_______________________ BANDARU SYAMSUNDER, J Dt:08.09.2022.

Rns BSS,J C.R.P.No.2085 of 2016

HON'BLE SRI JUSTICE BANDARU SYAMSUNDER

C.R.P.No.2085 OF 2016

Date: 08.09.2022

Rns BSS,J C.R.P.No.2085 of 2016