Andhra Pradesh High Court - Amravati
Kanneganti Kamalakar vs Nishtala Subramnyam Satya ... on 18 October, 2023
11
HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
+CIVIL MISCELLANEOUS APPEAL Nos.472, 473, 474, 483,
484 and 485 of 2022
CMA No.472 of 2022 :
Between:
#1. Kanneganti Kamalakar @ Kamalakara Rao
S/o. Kotaiah Chowdry, Hindu, aged 78 years,
Presently residing at USA represented by his
GPA holder Mr. Mandava Siddhartha S/o. Vinaykumar
Hindu, aged 27 years, employee,
Residing at Delhi
... Appellant
And
$ 1. 1. Nishtala Subramanya Satya Venkata Kameswara
Sanyasi Rao, S/o. late Narasimha Murty wrongly
Described as Venkatarama Subramanya Sharma,
Hindu, aged about 47 years, business,
Resident of Ingilapalli Village, Dttirajeru Mandal,
Vizianagaram District and another.
... Respondents
JUDGMENT PRONOUNCED ON 18.10.2023
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
1. Whether Reporters of Local
newspapers may be allowed to see
- Yes -
the Judgments?
2. Whether the copies of judgment may
be marked to Law Reporters/Journals - Yes -
3. Whether Their Ladyship/Lordship
wish to see the fair copy of the
- Yes -
Judgment?
___________________________________
DR.JUSTICE K. MANMADHA RAO
2
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
+CIVIL MISCELLANEOUS APPEAL Nos.472, 473, 474, 483, 484 and
485 of 2022
% 18.10.2023
CMA No.472 of 2022:
Between:
#1.
Kanneganti Kamalakar @ Kamalakara Rao S/o. Kotaiah Chowdry,
Hindu, aged 78 years, Presently residing at USA represented by his
GPA holder Mr. Mandava Siddhartha S/o. Vinaykumar Hindu, aged
27 years, employee, Residing at Delhi
Appellant
$1. 1
And
. Nishtala Subramanya Satya Venkata Kameswara Sanyasi Rao, S/o.
late Narasimha Murty wrongly Described as Venkatarama
Subramanya Sharma, Hindu, aged about 47 years, business, Resident
of Ingilapalli Village, Dttirajeru Mandal, Vizianagaram District and
another.
Respondents
3
! Counsel for the Appellant
Counsel for Respondents:
<Gist :
>Head note:
Sri M. Kesava Rao
Sri K. Devi Prasanna Kumar
?Cases referred :
1. (2021) 11 SCC 277
2. 2008(1) ALD 712
3. (2022) 7 SCC 247
4. (2015) 17 SCC 713
5. AIR 1981 (SC) 1400
THE HON'BLE DR.JUSTICE K. MANMADHA RAO
C.M.A Nos.472, 473, 474, 483, 484 and 485 of 2022
4
COMMON JUDGMENT :
As the issue involved in these appeals is one and the same,
these matters are taken up together for disposal by this Common
Judgment.
2. The facts in these appeals are similar and identical,
therefore C.M.A.No.472 of 2022 is taken as lead case, and the facts
therein are referred to for convenience.
3. The impugned A.S.No.09 of 2021 was filed by the
unsuccessful 1st defendant against the decree and judgment in O.S
No.21 of 019 dated 5.5.2020 on the file of the Senior Civil Judge,
Vizianagaram (for short "the trial Court").
4. For the sake of convenience, the parties in this appeal
will be referred to as arrayed before the trial Court.
5. The 1st respondent/plaintiff filed the suit before the
trial Court for permanent injunction restraining the defendants
and their men from ever interfering with the exclusive possession
and enjoyment of the plaintiff over the plaint schedule property in
any manner whatsoever and for costs. The plaintiff is the absolute
owner of the property situated at Vizianagaram. Originally, the
South Eastern Railway Employees Co-operative Building Society,
Vizianagaram, acquired land in an extent of Ac.8.76 cents by way
of purchase from several original Owners by paying necessary sale
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consideration and taken over possession of the same and the said
Society got approved the proposal for layout and the plaint
schedule two plots are part-and-parcel of the said layout. After
approval of layout, the said Society through its President, sold out
the plaint schedule plots to the plaintiff and handed over
possession of the plaint schedule plots and ever since the plaintiff,
being the bona fide purchaser, has been in possession and
enjoyment of the plaint schedule plots with all absolute rights,
title, interest and possession. In the village Adangal of Dharmapuri
at column Nos. 12 and 13 show that the land in S.No.64 in an
extent of Ac.4.90 and Ac.3.90 cents are house plots. The plaintiff
purchased the plaint schedule property together another plot
No.59 adjacent layout laid down by the above Society. Further, the
defendants without having any manner of right or title trying to
encroach into the plaint schedule property and also trying to create
some spurious documents in collusion with each other and third
parties, which are not at all binding on the plaintiff.
6. While so, on 11.09.2015, the defendants, taking
advantage of absence of the plaintiff in Vizianagaram, tried to
interfere with the plaint schedule property, but because of protest
and intervention of local mediators, the defendants could not
interfere with the plaint schedule property and left the place by
6
proclaiming that they would again come and interfere with the
plaint schedule property, Hence the suit.
7). The 1st defendant filed written statement denying all the
material allegations in the plaint and contended that an extent of
Ac.3.90 cents is a part in S.No.64/2 of Dharmapuri village, which
was originally purchased by one Bulusu Lakshmi Devamma under
registered sale deed dated 09.05.1927 from one Namburu Venkata
Raja Rajaji and his son, ever since she is in possession and
enjoyment of the same and after her death, her two daughters viz.,
Nishtala Annapoornamma and Gorthi Sureedamma have
succeeded to her estate, who enjoyed the said property and got
cultivated through tenant Ryots. Thereafter, since disputes arose
between the two sisters and tenant Ryots, Annapoornamma and
Sureedamma have filed suit in O.S.No.72 of 1977 on the file of Sub
Court, Vizianagaram, for declaration of title and recovery of
possession, which was subsequently decreed declaring that both
the sisters are the absolute Owners over Ac.3.90 cents of land in
S.No.64/2.
8. While so, both Annapoornamma and Sureedamma died
without issues. Since Sureedamma predeceased to
Annapoornamma, she executed a Will on 18.07.2000 in favour of
the 1" defendant bequeathing the property of Ac.3.90 and
subsequently the Testator/Annapoornamma died on 16.09.2001,
7
thereby, the Will acted upon and the 1" Defendant became the
absolute owner of the said Ac.3.90 cents of property. Since, even
prior to the decree in the above said suit, there was a house built
in Ac.3.90 cents and as such the said property remained
uncultivated and left as barren land and shrubs and bushes have
grown up in the said property, and hence, the plaintiff cannot
claim the said property by way of Will and hence the defendant is
the absolute Owner of the said extent and hence the suit is not
maintainable and prayed to dismiss the suit.
9. Basing on the above pleadings, the trial Court framed the
following issues for trial:
1. Whether the plaintiff is entitled for the relief of permanent injunction
as prayed for?
2. To what relief?
10. During the course of trial, on behalf of the plaintiff,
PWs.1 and 2 were examined and Ex.A1 to Ex.A12 were marked.
No one was examined and no documents were marked on behalf of
the defendants. Upon considering the oral and documentary
evidence, the trial Court decreed the suit. Aggrieved by the same,
the 1st defendant preferred the present impugned Appeal Suit in
A.S N.09 of 2021 before the Principal District Court, Vizianagaram
(for short "the first appellate Court") contending that the decree
8
and judgment of the trial Court is contrary to law, weight of
evidence and probabilities of the case.
11. After careful examination of the entire material available
on record and on considering the submissions made by both the
counsels the first appellate Court has allowed the appeal by setting
aside the decree and judgment passed by the trial Court and the
matter was remanded back to the trial Court for fresh disposal in
accordance with law within four months from the date of receipt of
the judgment after giving opportunity to the appellant/defendant
subject to payment of Rs.5,000/- by the appellant/defendant to
the 1st respondent/plaintiff on or before 7.1.2022, failing which the
appeal stands dismissed. Hence, the appeal came to be filed.
12. The pleadings which are cited by the appellant in
CMA No.472 of 2022, the same are adopted by other appellants
in other CMAs i.e., CMA Nos.473, 474, 483, 484 and 485 of
2022.
13. During pendency of the above CMAs, this Court, while
condoning the delay and while issuing notice before admission,
granted interim stay as prayed for vide order dated 29.12.2022 &
30.12.2022 in all the appeals.
9
14. Heard Sri M. Kesava Rao, learned counsel appearing for
the appellant(s) and Sri K. Devi Prasana Kumar, learned counsel
appearing for the respondents.
15. During hearing, learned counsel for the appellant(s)
while reiterating the averments made in the appeals, contended
that the judgment and decree of the lower appellate Court are
contrary to law and weight of evidence and cannot be
sustainable under eye of law. Further, the lower appellate Court
ought to have appreciated that the appellant therein did not
seek for remand of the appeal but sought for allowing the appeal
by setting aside the decree. He further submits that the lower
appellate court had erred and failed to see that the appellant did
not filed any petition in the appeal with regard to the further
adjudication of the evidence under the provisions of CPC and
also did not even call for the record of the trial Court to examine
whether the trial Court has really afforded the defendant to
cross examine the witnesses of the plaintiff and also adduce
evidence on his behalf. He further submits that the lower
appellate Court allowed the appeal by setting aside the decree
and judgment of the trial Court and ordered for fresh disposal
which virtually amounts de novo trial. If there is any lapse or
fault on the part of the 1st defendant before the trial Court, he
did not avail the opportunity of adducing evidence before the
10
first appellate Court and without pointing out any infirmity in
the judgment of the trial Court, the matter cannot be remitted
back to the trial Court. He further submits that the 1st
defendant prayed for remand only to cover his latches, which
cannot be permitted.
16. To support his contentions, learned counsel for the
appellant(s) has placed reliance on the judgment of Hon'ble
Supreme Court reported in Shivakumar and others versus
Sharanabasppa and others1, wherein it was held that :
. A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also
contours of the powers of remand that when the available evidence is sufficient to dispose of
the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of
Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in
challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court
shall adopt the course of remanding the case. It remains trite that order of remand is not to be
passed in a routine manner because an unwarranted order of remand merely elongates the life
of the litigation without serving the cause of justice. An order of remand only on the ground
that the points touching the appreciation of evidence were not dealt with by the Trial Court
may not be considered proper in a given case because the First Appellate Court itself is
possessed of jurisdiction to enter into facts and appreciate the evidence. There could, of
course, be several eventualities which may justify an order of remand or where remand would
be rather necessary depending on the facts and the given set of circumstances of a case.
17. In another case reported in Sri Rama Agencies,
Mahabubnagar v. Machani & Machani Agro Chemicals,
Kurnool District2, wherein the High Court of Judicature,
Andhra Pradesh at Hyderabad held that:
"...the respondent did not file any application under Rule 27 of Order XLIII
of C.P.C., before the Appellate Court, nor did he complain, that his efforts to
adduce any other evidence was scuttled by the trial Court. However, the lower
Appellate Court, even while trying to sustain the conclusions arrived at by the
1
(2021) 11 Supreme Court Cases 277
2
2008(1) ALD 712
11
trial Court, had come forward with the suggestions, as to what the respondent
herein ought to have done. If the respondent had pursued a particular line
before the trial Court, it was not for the Appellate Court to assess as to how far
it was appropriate."
18. Learned counsel for the appellant(s) while relying on
the above decision, submits that the lower appellate Court
committed error by granting the relief of remanding the matter
to the trial Court, though the respondent herein and appellant
therein did not seek the relief of remand.
19. Per contra, learned counsel for the respondents filed
their counters in all the appeals and denied all the allegations
made in the appeals. Learned counsel argued that as per
judgment of the first appellate court, the 1st respondent herein
paid the costs to the appellant herein. He further contended
that the trial Court judgment was delivered during the Covid
period and the 1st respondent herein being set ex parte he was
denied opportunity to adduce his evidence or to cross examine
PW.1 and PW.2. Hence the first appellate Court, considered and
an opportunity has to be given to this respondent, by remitting
back the suit to the trial Court for fresh disposal after giving
opportunity to the 1st defendant to adduce evidence and
imposed costs on this respondent. He further submitted that
the first appellate Court is right in remanding the matter to the
trial Court as the evidence is insufficient to decide the issue.
12
20. Learned counsel for the respondents has placed
reliance on the judgment of Hon'ble Supreme Court reported
Laltaprasad Balashankar Pande vs Ramsajivan Balashankar
Pande3 , wherein it was held that :
"..Admissibility of an additional evidence under Order XLI Rule 27 of
'the Code' does not depend upon the relevancy of the issue on hand, or whether
the applicant had an opportunity for adducing such evidence at an earlier stage
or not, but it depends upon whether or not appellate Court requires the
evidence sought to be adduced to enable it to pronounce judgment or for any
other substantial cause that is whether such additional evidence has a direct
bearing on pronouncement of judgment"
21. He has also relied upon a decision of Hon'ble Supreme
Court reported in A. Andisamy Chettiar versus A. Subburaj
Chettiar4, wherein it was held that :
From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that
the parties are not entitled to produce additional evidence whether oral or
documentary in the appellate court, but for the three situations mentioned
above. The parties are not allowed to fill the lacunae at the appellate stage. It is
against the spirit of the Code to allow a party to adduce additional evidence
without fulfillment of either of the three conditions mentioned in Rule 27. In the
case at hand, no application was moved before the trial court seeking scientific
examination of the document (Ex.A-4), nor can it be said that the plaintiff with
due diligence could not have moved such an application to get proved the
documents relied upon by him. Now it is to be seen whether the third condition,
i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not.
-
"13. Though the general rule is that ordinarily the appellate court should not
travel outside the record of the lower court and additional evidence, whether
oral or documentary is not admitted but Section 107 CPC, which carves out an
exception to the general rule, enables an appellate court to take additional
evidence or to require such evidence to be taken subject to such conditions and
limitations as may be prescribed. These conditions are prescribed under Order
41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only
when the circumstances as stipulated in the said Rule are found to exist........"
In N. Kamalam (dead) and another v. Ayyasamy and another[3], this Court,
interpreting Rule 27 of Order XLI of the Code, has observed in para 19 as
under: -
(2022) 7 SCC 247
(2015) 17 SCC 713
"....... the provisions of Order 41 Rule 27 have not been engrafted in the Code
so as to patch up the weak points in the case and to fill up the omission in the
court of appeal - it does not authorize any lacunae or gaps in the evidence to be
filled up. The authority and jurisdiction as conferred on to the appellate court to
let in fresh evidence is restricted to the purpose of pronouncement of judgment
in a particular way." In Union of India v. Ibrahim Uddin and another[4], this
Court has held as under: -
"49. An application under Order 41 Rule 27 CPC is to be considered at the time
of hearing of appeal on merits so as to find out whether the documents and/or
the evidence sought to be adduced have any relevance/bearing on the issues
involved. The admissibility of additional evidence does not depend upon the
relevancy to the issue on hand, or on the fact, whether the applicant had an
opportunity for adducing such evidence at an earlier stage or not, but it
depends upon whether or not the appellate court requires the evidence sought
to be adduced to enable it to pronounce judgment or for any other substantial
cause. The true test, therefore is, whether the appellate court is able to
pronounce judgment on the materials before it without taking into consideration
the additional evidence sought to be adduced.............." Learned counsel for
the appellant argued before us that the High Court, in revision, at an interim
stage of appeal pending before the lower appellate court, should not have
interfered in the matter of requirement of additional evidence.
We have considered the argument advanced on behalf of the appellant and
also perused the law laid down by this Court as to the exercise of revisional
power under Section 115 of the Code in such matters. In Mahavir Singh and
others v. Naresh Chandra and another[5], explaining the scope of revision in
the matters of acceptance of additional evidence by the lower appellate court
interpreting expression "or for any other substantial cause" in Rule 27 of Order
XLI, this Court has held as under: -
"The words "or for any other substantial cause" must be read with the word
"requires", which is set out at the commencement of the provision, so that it is
only where, for any other substantial cause, the appellate court requires
additional evidence, that this rule would apply as noticed by the Privy Council
in Kessowji Issur v. G.I.P. Rly. [ILR (1907-08) 31 Bom 381]. It is under these
circumstances such a power could be exercised. Therefore, when the first
appellate court did not find the necessity to allow the application, we fail to
understand as to how the High Court could, in exercise of its power under
Section 115 CPC, have interfered with such an order, particularly when the
whole appeal is not before the Court. It is only in the circumstances when the
appellate court requires such evidence to pronounce the judgment the necessity
to adduce additional evidence would arise and not in any other circumstances.
When the first appellate court passed the order on the application filed under
Order 41 Rule 27 CPC, the whole appeal was before it and if the first appellate
court is satisfied that additional evidence was not required, we fail to
understand as to how the High Court could interfere with such an order under
Section 115 CPC." In Gurdev Singh and others v. Mehnga Ram and another[6],
this Court, on similar issue, has expressed the view as under: -
"We have heard learned counsel for the parties. The grievance of the appellants
before us is that in an appeal filed by them before the learned Additional
District Judge, Ferozepur, in an application under Order XLI, Rule 27(b), Code
of Civil Procedure (CPC) the learned Additional District Judge at the final
hearing of the appeal wrongly felt that additional evidence was required to be
produced as requested by the appellants by way of examination of a
handwriting expert. The High Court in the impugned order exercising
jurisdiction under Section 115 CPC took the view that the order of the appellate
court could not be sustained. In our view the approach of the High Court in
revision at that interim stage when the appeal was pending for final hearing
before the learned Additional District Judge was not justified and the High
Court should not have interfered with the order which was within the
jurisdiction of the appellate court. The reason is obvious. The appellate court
hearing the matter finally could exercise jurisdiction one way or the other under
Order XLI, Rule 27 specially clause (b). If the order was wrong on merits, it
would always be open for the respondent to challenge the same in accordance
with law if an occasion arises to carry the matter in second appeal after an
appellate decree is passed. But at this interim stage, the High Court should not
have felt itself convinced that the order was without jurisdiction. Only on this
short question, without expressing any opinion on the merits of the controversy
involved and on the legality of the contentions advanced by both the learned
counsel for the parties regarding additional evidence, we allow this appeal, set
aside the order of the High Court." In view of the law laid down by this Court,
as discussed above, regarding exercise of revisional powers in the matter of
allowing the application for additional evidence, when appeal is pending before
the lower appellate court, the impugned order passed by the High Court cannot
be upheld and the same is set aside. However, to do complete justice between
the parties, we think it just and proper to direct the first appellate court to
decide the application for additional evidence afresh in the light of observations
made by this Court regarding principles on which such an application can be
allowed or rejected. We order accordingly. We further clarify that we have not
expressed any opinion as to the merits of the case. Accordingly, the appeal is
disposed of.
22. Learned counsel for the respondents further submits
that as per interim stay passed in these appeals, this
respondent is unable to proceed further with the suit. If the
orders of this court dated 30.12.2022 are not vacated, this
respondent will be put to irreparable loss and hardship. Hence,
prayed to dismiss the appeals while vacating the interim stay
orders passed by this Court.
23. In reply, learned counsel for the appellant(s) argued
that the lower appellate Court, simply perused the grounds of
appeal and without application of mind has passed the
judgment and decree and the lower appellate Court failed to see
the provisions of the CPC over ride for remanding the matter to
the trial Court on imposition of costs.
24. On perusing the entire material available on record,
this Court observed that, the plaintiff purchased the plaint
schedule property under Ex.A1 from his vendor and ever since
date of purchase, he has been in possession and enjoyment of
the said property. Admittedly, the plaint schedule property is a
vacant land and in view of that, the plaintiff is presumed to be
in constructive possession of that vacant site by virtue of the
title passed to him from his vendor under Ex.A1.
25. On the other hand, the 1st defendant though
contested the matter, by raising several pleas and allegedly
claimed title over the plaint schedule property at first failed to
cross examine PW.1 and secondly he did not choose to cross
examine PW.2 and also failed to adduce any evidence.
26. In the present case, from the factual matrix of the
case, it is clear that both parties are very much disputing the
title of each other over the schedule property. It is the
contention of the appellant that the trial Court did not give
opportunity to let in evidence and passed judgment during the
pandemic period and further even if counsel for the 1st
defendant refused to receive before the trial Court, for the acts
and lapses of an Advocate, the innocent party cannot be made a
victim and urged the Court to remand the matter to the trial
Court for fresh disposal after giving opportunity to the appellant
to adduce evidence and to cross examine the plaintiff's
witnesses. The act of non-cross-examination and refusing to
take notice is on the part of the learned counsel for the
appellant/1st defendant, for which act, the party cannot be
made a victim.
27. In a case of Rafiq and another vs. Munshilal and
another5, wherein the Apex court held that "an innocent party
cannot be suffered to injustice merely because his chosen
Advocate defaulted.."
28. Under our present adversary legal system where the
parties generally appear through their advocates, the obligation
of the parties is to select his advocate, brief him, pay the fees
demanded by him and then trust the learned advocate to do the
rest of the things. The party may be a villager or may belong to a
rural area and may have no knowledge of the court's procedure.
After engaging a lawyer, the party may remain supremely
confident that the lawyer will look after his interest. At the time
of the hearing of the case, the personal appearance of the party
is not only not required but hardly useful. Therefore, the party
having done everything in his power to effectively participate in
AIR 1981 (SC) 1400
the proceedings can rest assured that he has neither to go to the
High Court to inquire as to what is happening in the High Court
with regard to his case nor is he to act as a watchdog of the
advocate that the latter appears in the matter when it is listed. It
is no part of his job.
29. A practice has grown up in the High Court amongst
the lawyers that they remain absent when they do not like a
particular Bench. May be he is better informed on this matter.
Ignorance in this behalf is our bliss. Even if I do not put our seal
of imprimatur on the alleged practice by dismissing this matter
which may discourage such a tendency, would it not bring
justice delivery system into disrepute? What is the fault of the
party who having done everything in his power and expected of
him would suffer because of the default of his advocate. If I
reject this petition, the only one who would suffer would not be
the lawyer who did not appear but the party whose interest he
represented. The problem that agitates us is whether it is proper
that the party should suffer for the inaction, deliberate
omission, or misdemeanour of his agent. The answer obviously
is in the negative. May be that the learned advocate absented
himself deliberately or intentionally. I have no material for
ascertaining that aspect of the matter. I say nothing more on
that aspect of the matter. However, I cannot be a party to an
innocent party suffering injustice merely because his chosen
advocate defaulted. In view of the above, the party is not
responsible because he has done whatever was possible and was
in his power to do, the costs should be recovered from the
advocate who absented himself.
30. It is the contention of the 1st respondent/ plaintiff
that if there is any lapse or fault on the part of the counsel for
the appellant/1st defendant before the trial Court, the appellant
did not avail the opportunity of adducing evidence before the
first appellate Court, and without pointing out any infirmity in
the judgment of the trial court, the matter cannot be remitted
back to the trial Court. It is also the contention of the 1st
respondent/plaintiff that the appellant/1st defendant prayed for
remand only to cover his latches, which cannot be permitted.
31. It is pertinent to mention here that as per Amendment
Act 104/1976 w.e.f. 01.02.1977,Order XL1 Rule 23-A confers
powers on the appellate Court to remand whole suit for trial.
32. Learned counsel for the appellant/1st defendant
submitted that the 1st defendant is claiming the title over the
schedule property by strongly objecting the alleged title of the
plaintiff, the trial Court should have given opportunity to the
appellant to establish his case since the restraint order by way
of injunction can be granted only on establishing the actual
interference or threat of interference. However, learned counsel
for the 1st respondent/plaintiff submitted that the appellant/1st
defendant did not ask for remanding the suit either for fresh
disposal after giving opportunity to the appellant or for
conducting de nova trial. He further submitted that if really the
defendant is deprived of his right to adduce evidence before the
trial Court, he ought to have made an attempt to adduce
evidence before the appellate Court by filing a petition under
Order XL1 Rule 27 CPC and as such cannot ask for setting
aside the judgment of the trial Court.
33. Upon perusing the entire material available on record,
it is observed that, whatever be the reasons, the defendant did
not cross examine the plaintiff's witnesses and did not adduce
any evidence on his behalf, hence without any hesitation, it can
be said that the appellant had no opportunity to submit his case
by adducing his side evidence also by cross examining the
plaintiff's witnesses. Moreover, when the appellant/1st
defendant was really denied opportunity by the trail Court, he
could have file a petition under Order XL1 Rule 27 of CPC for
adducing evidence before the first appellate Court as rightly
contended by the 1st respondent/plaintiff, and merely only on
that ground, the urge of the appellant cannot be brush aside.
34. In view of the foregoing discussion, this Court found
no illegality or perversity in the orders passed by the first
appellate Court warrants no interference. Finding no merit in
all the instant Civil Miscellaneous Appeals and as devoid of
merits, the same are liable to be dismissed.
35. Accordingly, all the Civil Miscellaneous Appeals are
dismissed. There shall be no order as to costs.
36. It is made clear the interim orders granted by this Court
in all the appeals are hereby vacated.
37. As a sequel, miscellaneous applications pending, if any,
shall also stand closed.
___________________________________
DR.JUSTICE K. MANMADHA RAO
Date: 18 -10-2023.
Note : L.R copy to be marked.
(b/o)Gvl
HE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.M.A Nos.472, 473, 474, 483, 484 and 485 of 2022
Date : 18 .10.2023
Gvl
