Telangana High Court

Gudi Satyanarayana Reddy vs Maggidi Narsaiah Died on 30 July, 2024

Author: Surepalli Nanda

Bench: Surepalli Nanda

   IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                   C.R.P.No.2220 OF 2024

Between:

Gudi Satyanarayana Reddy
                                                 ...       Petitioner
                              And

Maggidi Narsaiah (died) per L.Rs. & others

                                             ...   Respondents


         JUDGMENT PRONOUNCED ON: 30.07.2024


      THE HON'BLE MRS JUSTICE SUREPALLI NANDA


1. Whether Reporters of Local newspapers             :    Yes
   may be allowed to see the Judgment?

2. Whether the copies of judgment may be         :       Yes
   marked to Law Reporters/Journals?

3. Whether Their Lordships wish to               :       Yes
   see the fair copy of the Judgment?




                         ___________________________
                          MRS JUSTICE SUREPALLI NANDA
                                    2
                                                              CRP_2220 of 2024
                                                                           SN,J




      THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                    C.R.P.No.2220 OF 2024


% 30.07.2024

Between:


# Gudi Satyanarayana Reddy
                                                     ...   Petitioner
                                       And


$ Maggidi Narsaiah (died) per L.Rs. & others

                                                   ... Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner   :        Sri Lingam Divakara Rao

^ Counsel for Respondents      :        Sri M. Mallesham


? Cases Referred:
(1) 2012 (8) SCC 148 equivalent 2012 SCC Online 528
                                     3
                                                                   CRP_2220 of 2024
                                                                                SN,J




         HON'BLE MRS. JUSTICE SUREPALLI NANDA

                     C.R.P.No.2220 OF 2024
ORDER:

Heard Sri Lingam Divakara Rao, learned counsel

appearing on behalf of the petitioner and

Sri M. Mallesham, learned counsel appearing on behalf of

the respondents.

2. The Civil Revision Petition is filed challenging propriety and

legality of the order dated "11.06.2024 in I.A.No.39 of 2023, in

A.S.No.11 of 2017 on the file of the Additional District Judge at

Godavarikhani", whereunder a petition filed under Order 41 Rule

27 read with Section 157 CPC filed by the Appellants/plaintiffs

was allowed.

3. For the sake of convenience, the parties are referred to as

they are arrayed in the appeal before the lower Court.

4. The appellants/plaintiffs filed I.A.No.139 of 2023 in

A.S.No.11 of 2017 on the file of Additional District Judge at

Godavarikhani, under Order 41 Rule 27 CPC, praying the Court

that the documents namely certified copy of Registered Sale

Deed, Rythu Passbook and Simple Sale Deeds etc., may be

considered in the interest of justice.

CRP_2220 of 2024 SN,J

5. The appellants/plaintiffs plea is that they filed petition

before the trial Court to receive those documents and the Court

dismissed the petition and they filed revision petition before the

Hon'ble Court and the Revision Petition was returned and their

counsel did not take any steps in respect thereof and in the

meanwhile trial Court dismissed the suit and the documents are

necessary to decide the case and hence those documents may

be considered as additional evidence in the interest of justice.

6. The respondents/defendants filed counter alleging that the

petition is filed 7 year after filing of the appeal and there is no

mention about the documents in the plaint and so the

genuineness of the documents had to be doubted and that the

petition is filed to fill up gaps in evidence and that the petitioner

having preferred revision petition against the order of dismissal

of the petition to receive the documents cannot invoke the

provisions of the Order 41 Rule 27 hence petition is liable to be

dismissed and the documents cannot be considered at the

Appellate stage as per the whims and fancies of the

petitioner/appellant.

7. The appellate Court after considering the material on

record partly allowed the petitioner I.A.No.139 of 2023 in

CRP_2220 of 2024 SN,J

A.S.No.11 of 2017 vide its order dated 11.06.2024 observing as

under:

"In the result, this petition is partly allowed by receiving the documents i.e., certified copy of registered sale deed document bearing No.707/1986 along with its translation copy as well as certified copy of registered sale deed document bearing No.2963/1977 along with its translation copy and raithu pass book vide its No.492 to be marked on behalf of plaintiff. No costs."

Feeling aggrieved by the same, the

respondents/defendants filed the revision petition.

8. The Judgements relied upon by the learned counsel

on record are as under:

(1) (1979) 2 Supreme Court Cases 601 in "Syed Abdul Khader v. Rami Reddy and others".

(2) (2022) 7 Supreme Court Cases 247 in "Sanjay Kumar Singh v. State of Jharkhand".

(3) In Criminal Appeal No.2020 of 2009 (Arising out of SLP (Crl.)No.198 of 2009 in "Bharat Amratlal Kothari v.

Doshkhan Samadkhan Sindhi and others."

(4) 2020 LawSuit (SC) 877 in Civil Appeal No.6325 of 2015, 6326 of 2015 in Akella Lalitha v. Konda Hanumantha Rao and another".

(5) In Civil Appeal No.9106 of 2012 in M/s.Rajasthan Art Emporium v. Kuwait Airways and another with Civil Appeal No.9194 of 2012".

CRP_2220 of 2024 SN,J

This Court opines that the Judgments relied upon by

both the learned counsel appearing on behalf of the

petitioner and learned counsel appearing on behalf of the

respondents do not apply to the facts of the present case.

9. The lower Court ordered the documents to be received for

considering them as additional evidence on the ground that they

are necessary for pronouncing Judgment. But the Court did not

give any reasons for coming to the conclusion that the

documents are essential for pronouncement of Judgments.

10. It is only on perusal of the pleadings and evidence of both

the parties the Court can assess whether the documents have

necessary bearing on the issues involved and so need to be

considered as additional evidence.

11. That exercise can be done only at the final hearing of the

appeal itself, therefore follows that the lower Court ought to

have taken up the disposal of I.A.No.139 of 2023 in A.S.No.11 of

2017 with the final hearing in the appeal.

12. The Hon'ble Supreme Court of India in Union of India

v. Ibhrahim Uddin and another reported in 2012 (8) SCC

148 equivalent 2012 SCC Online 528 held that if the

CRP_2220 of 2024 SN,J

application under Order 41 Rule 27 is disposed of earlier

than the appeal, the order under Order 41 Rule 27 can be

ignored since it is passed due to non application of judicial

mind.

In the above Judgment the relevant portion at Paras

38 to 41 and Para 69 (viii), is extracted hereunder:

38. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find 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. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide:Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053).

39. In Parsotim Thakur & Ors. v. Lal Mohar Thakur & Ors., AIR 1931 PC 143, it was held:

?"The provisions of S.107 as elucidated by O.41, R.27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under R.27, Cl.(1) (b) it is only where the appellate Court "requires" it (i.e. finds it needful). ...... The legitimate occasion for the exercise of this discretion is not whenever

CRP_2220 of 2024 SN,J

before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent", it may well be that the defect may be pointed out by a party, or that a party may move the Court to apply the defect, but the requirement must be the requirement of the court upon its Union Of India vs Ibrahim Uddin & Anr on 17 July, 2012 Indian Kanoon - http://indiankanoon.org/doc/61939581/ 11 appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by R. 27(2) to record its reasons for so doing, and under R.29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case..." (Emphasis added) (See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 P.C. 128)

40. In Arjan Singh v. Kartar Singh & Ors. (supra), this Court held:

".........If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non- existent....... The order allowing the appellant to call the additional evidence is dated 17.8.1942. The appeal was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment" (Emphasis added).

41. 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

CRP_2220 of 2024 SN,J

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/inexecutable and is liable to be ignored.

In the instant case, the application under Order XLI Rule 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored."

(viii) The first appellate court committed a grave error in deciding the application under Order XLI Rule 27 CPC much prior to the hearing of the appeal. Thus, the order allowing the said application is liable to be ignored as the same had been passed in gross violation of the statutory requirement."

13. In view of the ruling of the Supreme Court of India in

Union of India Vs. Ibrahim Uddin and another reported in 2012

(8) SCC 148 and duly considering the same since in the present

case the lower Court passed the impugned order without taking

up the hearing of the appeal, the order impugned is liable to be

set aside and the matter has to be remanded to the lower Court

for disposal of the petition afresh along with the appeal.

CRP_2220 of 2024 SN,J

14. For the aforesaid reasons this Court is of the considered

opinion that the order dated 11.06.2024 in I.A.No.139 of 2023

has to be set aside and hence CRP is allowed and the order

dated 11.06.2024 in i.A.No.139 of 2023 is accordingly set aside,