Unknown vs The Hon'Ble Justice Dr. ...
2023 Latest Caselaw 3344 AP

       THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CIVIL REVISION PETITION No.1988 of 2018

ORDER:

This Civil Revision Petition filed under Article 227 of the

Constitution of India assails the Order dated 07.12.2017 of

learned Senior Civil Judge, Penukonda in I.A.No.315 of 2016 in

A.S.No.6 of 2011.

2. O.S.No.323 of 2000 is a suit filed for perpetual injunction

restraining the defendant Nos.1 and 2 from interfering with

peaceful possession and enjoyment of the plaintiff over the

plaint schedule property. After due contest, the suit was decreed

by a judgment in favour of the plaintiff by the learned Junior

Civil Judge, Penukonda. Aggrieved by it, defendant No.1 in the

suit filed A.S.No.6 of 2011 and the same is pending before

learned Senior Civil Judge, Penukonda. During the pendency of

that appeal, the appellant/defendant No.1 filed I.A.No.315 of

2016 seeking for production of additional evidence. The

additional evidence proposed to be brought on record is a

Vibhaga dasthaveju kharanama dated 13.10.2003. Respondent

No.1 in that application is the plaintiff in the suit and he filed a

counter. The learned Senior Civil Judge, Penukonda inquired

Dr. VRKS, J C.R.P.No.1988 of 2018

into that application and by the impugned order, dismissed the

said application.

3. Aggrieved of it, the present revision petition is preferred

by the appellant therein. Learned counsel for revision petitioner

impugns the Order on two grounds.

1. That the learned first appellate Court failed to consider

the true purport of the proposed additional evidence and

erroneously dismissed the application for additional

evidence.

2. That in terms of Order XLI Rule 27(b) CPC, the

application for additional evidence ought to have been

heard along with the appeal and not independently and

the learned first appellate Court separately dealt with the

application for additional evidence and thereby it grossly

violated the law.

It is on these two grounds, learned counsel for appellant

prays this Court to set aside the impugned Order.

4. For respondent No.1/plaintiff in the suit, learned counsel

submits that only on appropriate consideration of facts on

Dr. VRKS, J C.R.P.No.1988 of 2018

record, the learned first appellate Court dismissed the

application for additional evidence and there is no reason for

this Court to interfere with that reasoned Order. Learned

counsel further submits that any procedural error in hearing

the application separately by the learned first appellate Court

does not cause any prejudice and therefore no interference is

needed.

5. Having considered the facts on record and the

submissions advanced by both sides learned counsels, this

Court finds that the impugned order cannot be sustained and is

liable to be set aside for the following reasons.

6. During trial stage, it is up to both parties to produce all

the relevant evidence. When it goes to first appeal, production of

additional evidence is not a matter of right for any party. Order

XLI Rule 27 CPC lays down the principles governing production

of additional evidence and its admission. The principle that

governs the first appellate Court in deciding an application for

additional evidence is that learned first appellate Court has to

come to a definite conclusion

Dr. VRKS, J C.R.P.No.1988 of 2018

Whether it is really necessary to accept the documents as additional evidence or not?

Or is it necessary to accept such documents so as to enable it to pronounce the judgment?

The true test is where the appellate Court is able to

pronounce the judgment to its satisfaction from the material

available before it or whether it cannot pronounce a judgment to

its satisfaction without taking into consideration the additional

evidence. The additional evidence that is proposed to be

adduced, by the very purport of this principle that emerged very

clearly shows that such opinion could be formed by the learned

first appellate Court only when it hears the appeal itself. Thus,

it is necessary for the first appellate Court to hear the appeal

along with the application for additional evidence and then

reach to a conclusion whether it requires additional evidence or

not? If it does not require additional evidence, it could dismiss

the application for additional evidence by recording its reasons

and then render its judgment in the appeal. If it finds that

additional evidence is required then it shall record its reasons

and allow that application and proceed to collect the evidence by

itself or through the learned trial Court as is provided in the

subsequent provisions contained in Order XLI CPC. This has

Dr. VRKS, J C.R.P.No.1988 of 2018

been the law laid down by the Hon'ble Supreme Court of India

in K.R.Mohan Reddy V .M/s Net Work Incorporation

represented by Tr.M.D1 and Malayalam Plantations V. State

of kerala2.

7. When the above principle of law is applied to the case at

hand, it is clear that the learned first appellate Court has not

heard A.S.No.6 of 2011 but it heard I.A.No.315 of 2016 and

gave its decision only in I.A.No.315 of 2016. Thus, it made itself

unable to appreciate the total case on both sides and the merits

or otherwise of the appeal and availability or otherwise of the

evidence on record and the need or otherwise of the additional

evidence in the context of the existing evidence. Thus, grave

error is apparent from the record on part of learned first

appellate Court. It certainly occasions injustice requiring

interference. Therefore, the impugned order cannot be

sustained.

8. In the result, this Civil Revision Petition is allowed. There

shall be no order as to costs.

(2007) 14 SCC 257

(2010) 13 SCC 487

Dr. VRKS, J C.R.P.No.1988 of 2018

Impugned Order dated 07.12.2017 in I.A.No.315 of 2016 in

A.S.No.6 of 2011 on the file of learned Senior Civil Judge,

Penukonda is set aside. Learned Senior Civil Judge, Penukonda

is directed to hear the appeal in A.S.No.6 of 2011 and also

I.A.No.315 of 2016 for additional evidence and then dispose of

the matters in accordance with law.

As a sequel, miscellaneous applications pending, if any, shall

stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 11.07.2023 DVS

Dr. VRKS, J C.R.P.No.1988 of 2018

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CIVIL REVISION PETITION No.1988 of 2018

Date: 11.07.2023

DVS