Telangana High Court

Kotapati Prasad vs Munimakula Nageshwar Rao on 23 November, 2022

Bench: G.Anupama Chakravarthy

     HON'BLE SMT. JUSTICE G. ANUPAMA CHAKRAVARTHY

          CIVIL REVISION PETITION No.2581 of 2022

ORDER :

This revision petition is filed against the orders in

I.A.No.104 of 2019 in A.S.No.231 of 2018, dated 14.10.2022 on

the file of the Principal District and Sessions Judge, Jayashankar

Bhupalpally.

2. The aforesaid interlocutory application has been filed by the

respondent herein under Order 41, Rule 27 r/w. Section 151 of

C.P.C., praying the Court to receive the copy of resolution, dated

02.03.2019, issued by the Grampanchayat, Gunturpalli village as

additional evidence, as the said document relates to the suit

schedule property, which is very much essential for proper

adjudication in the appeal.

3. Heard learned counsel for revision petitioner and perused the

record.

4. It is contended by the learned counsel for revision petitioner

that the petition filed under Order 41 Rule 27 CPC was allowed by

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the lower appellate Court without giving proper reasons and

without following the procedure contemplated under the said

provision.

5. The learned counsel for the revision petitioner has relied on

the judgment of Hon'ble Supreme Court in Civil Appeal No.5185

of 2008, wherein, their Lordships have held as under:

"Order 41 Rule 27 CPC contemplates that wherever additional evidence is allowed to be produced by the appellate Court, the court should record reasons for its admission. We find that the first appellate Court did not reject the application under Order 41 Rule 27 CPC, nor did it assign any reasons while recording that only production of the documents was allowed. We are of the view that the procedure adopted was incorrect. The first appellate Court ought to have passed an order in respect of the application unrder Order 41 Rule 27 CPC, either allowing or rejecting the application. The first appellate Court has considered the application as if it was one under Order 13 Rule 1 CPC and not under Order 41 Rule 27 CPC. The High Court ought to have therefore interfered in the matter by raising an appropriate question of law. It failed to do so. The judgments, therefore, call for interference."

Accordingly, the learned counsel for revision petitioner prayed to

set aside the impugned order.

6. Perused the record.

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7. It is evident that I.A.No.104 of 2019 has been allowed by the

lower appellate Court by a three-line-order, which reads as under:

"Respondents present and their counsel absent, treated as "Heard" and petition is allowed to pass better adjudication subject to admissibility and relevancy of the document 02-03-2019."

On perusal of the above order, it is evident that the first appellate

Court has not followed the due procedure contemplated under

Order 41 Rule 27 of CPC, which reads as under:

"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."

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8. As per the aforesaid provision, it is for the appellate Court to

consider the additional evidence or documents by giving due

reasons for allowing the said application. The first appeal is the

continuation of the suit proceedings and the first appellate Court

can decide the cases on the question of law as well as on the

question of facts i.e. mixed questions of facts and law. The first

appellate Court either can record the evidence by itself or can

remand back the matter to the trial Court for recording the

evidence, but reasons have to be assigned by the Court. In a catena

of judgments, time and again, the Hon'ble Apex Court has held

that Order 41 Rule 27 applications have to be considered at the

time of hearing of the appeal and if the first appellate Court feels it

necessary to adduce the additional evidence, then the Court has to

assign reasons and to first dispose of the application and then later

dispose of the appeal. If Order 41 Rule 27 of CPC application is

dismissed, the first appellate Court can pass orders in the appeal.

9. In Union of India v. Ibrahim Uddin & another1, the

Hon'ble Supreme Court has held as under:

(2012) 8 SCC 148

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"Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/in-executable and is liable to be ignored."

10. The aforesaid judgment is squarely applicable to the facts

and circumstances of the present case, as the impugned order has

been passed without assigning reasons as to why the document was

being taken on record. Therefore, it can be construed that the first

appellate Court went beyond the scope of Order 41 Rule 27 of

CPC. Furthermore, the petition was allowed even without hearing

the respondents. This Court is of the considered view that only

when the said application is heard along with the main appeal, then

only, the Court can decide as to whether the document dated

02.03.2019 is necessary to decide the appeal or not.

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11. For the aforesaid reasons, this revision petition is allowed