Kongara Sathyamma vs Md. Athara Bee
2025 Latest Caselaw 2684 Tel

Telangana High Court

Kongara Sathyamma vs Md. Athara Bee on 3 March, 2025

Author: G.Radha Rani

Bench: G.Radha Rani

      THE HONOURABLE Dr. JUSTICE G.RADHA RANI

           CIVIL REVISION PETITION No.2745 of 2019

ORDER:

This Civil Revision Petition is filed by the petitioner aggrieved by the

order dated 09.09.2019 passed in I.A.No.254 of 2019 in A.S.No.30 of 2018 by

the learned VI Additional District Judge, Siddipet.

2. The petitioner was the appellant in A.S.No.30 of 2018. He filed an

application under XLI Rule 27 read with Section 151 of CPC to receive certain

documents during the pendency of the appeal. The petitioner - appellant was

the plaintiff. She filed the suit for injunction against the respondent over the

suit schedule property.

3. The case of the petitioner - appellant - plaintiff was that during the trial

of the suit, the Government of Telangana contemplated for regularization of

residential properties basing on possession. Accordingly, the petitioner applied

for the same and the Government after enquiry has accorded a 'deed of

conveyance', which was duly registered upon her on 10.12.2015. The said deed

of conveyance was registered by the Tahsildar, Siddipet (urban) and that she

had applied for assessment of municipal tax, and tax was also assessed. She

also paid the said tax to the Municipality, as such wanted to bring on record the

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deed of conveyance, municipal tax assessment and mutation proceedings before

the Appellate Court.

4. The respondent filed counter contending that there was no whisper in the

pleadings about the proposed documents. Without reference in the pleadings,

the documents could not be received. The petitioner failed to prove her legal

possession against the respondent as on the date of filing of the suit. As such,

the trial court dismissed the suit. The proposed documents were subsequent to

the date of filing of the suit, as such they were irrelevant for adjudication of the

matter and opposed the petition.

5. The learned VI Additional District Judge, Siddipet on considering the

contentions of both the counsel representing the parties, dismissed the petition.

6. Aggrieved by the said dismissal, the petitioner - appellant - plaintiff

preferred this revision.

7. Heard Sri P.Rama Sharana Sharma, learned counsel for the petitioner and

Sri Mohammed Veqar Hussain, learned counsel for the respondent.

8. Learned counsel for the petitioner submitted that the lower Appellate

Court failed to consider that the documents filed for consideration in the appeal

were relevant. They were only continuation of the previous and continuous

possession of the property. No new aspect has been brought on record. The

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above documents were crucial and vital for adjudicating the issue in the appeal.

Though the documents were dated much later to the suit, but the said documents

were issued only after considering the fact that due to the continuous possession

of the petitioner much prior to the filing of the suit, they were issued, which

would prove the physical possession of the property much prior to the suit, and

as on the date of the suit and relied upon the judgment of the erstwhile High

Court of Andhra Pradesh in Kappa Venkata SubbaRaju v. Emmuri

Sreeramulusetty Venkata Subbaiah Setty New Company 1 on the aspect that

it is well recognized principle of law that procedure is required to help Court in

arriving at a proper and just conclusion, and it cannot be permitted to defeat the

rights of the parties. He further relied upon the judgment of the common High

Court of Punjab and Haryana in Phool Chand Jain and Others v. Smt.Jotri

Devi and Others 2 on the aspect that evidence essential to determine real

controversy in suit must be allowed to be produced. The principles of

procedural law are hand maid, to justice. He also relied upon the judgment of

the High Court of Odisha in Bijay Kumar Banerjee v. Malati Banerjee3 on

the aspect that the law is well settled that if a petition under XLI Rule 27 CPC is

filed, the Appellate Court may postpone consideration of the said petition till

hearing of the appeal and should take up the same at the time of hearing of the

2006 (0) SCJ Online (AP) 596

2001 (0) SCJ Online (P & H) 1660

2007 (0) SCJ Online (Ori) 61

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appeal on merits so as to find as to whether the documents and / or the evidence

sought to be adduced have any relevance or bearing in the issues involved.

9. Learned counsel for the respondent on the other hand contended that the

documents filed by the petitioner in I.A.No.254 of 2019 were subsequent to the

date of filing of the suit. The revision petitioner in her affidavit in I.A.No.254

of 2019 stated that she was not aware of the importance of the document, hence,

did not inform the counsel on record. It was totally a vague reason, which could

not be considered in the eyes of law. The petitioner failed to show any valid

reason to receive the documents. The documents filed by the petitioner could

not be considered in the appeal suit as only the possession as on the date of

filing of the suit was only material and relied upon the judgment of the Hon'ble

Apex Court in Balkrishna Dattatraya Galande v. Balkrishna Rambharose

Gupta and another 4 on the aspect that in a suit filed under Section 38 of the

Specific Relief Act, possession as on the date of suit was a must for grant of

permanent injunction. When the first respondent-plaintiff failed to prove that he

was in actual possession of the property as on the date of the suit, he was not

entitled for the decree for permanent injunction.

9.1. Learned counsel for the respondent further contended that a party could

not produce any additional evidence at the appellate stage. Order XLI Rule

27(1) of CPC clearly speaks with regard to the requirements or the

(2020) 19 SCC 119

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circumstances under which additional petition could be allowed, the petitioner

failed to explain as to why she could not produce the said documents before the

trial court and relied upon the judgment of the Hon'ble Apex Court in Union of

India v. Ibrahim Uddin and another5.

10. As seen from the record, the petitioner - appellant - plaintiff filed the suit

for injunction and the said suit was dismissed by the trial court on merits.

11. Aggrieved by the said dismissal of the suit, the petitioner - plaintiff

preferred A.S.No.30 of 2018. During the pendency of the appeal, filed

I.A.No.254 of 2019 for receipt of documents and additional evidence. Order

XLI Rule 27 of CPC clearly states the circumstances under which additional

evidence can be allowed.

12. Order XLI Rule 27 of CPC deals with production of additional evidence

in Appellate Court. It reads as follows:

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

2012 (4) Supreme 585

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(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.

13. The Hon'ble Apex Court in Union of India v. Ibrahim Uddin and

another (cited supra) after considering the provisions under XLI Rule 27 of

CPC, held that:

"25. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramaiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526; The Municipal Corporation of Greater Bombay v. LalaPancham& Ors., AIR 1965 SC 1008; Soonda Ram &Anr. v. Rameshwaralal

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&Anr., AIR 1975 SC 479; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553).

26. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798).

27. Under Order XLI , Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: LalaPancham& Ors. (supra) ].

28. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. ManbodhanLalSrivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam& Ors., AIR 1969 SC 101).

29. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realize the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal."

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14. As seen from the affidavit filed by the petitioner - appellant - plaintiff,

she stated that though she had obtained the said document, the deed of

conveyance much prior to the date of the appeal, as she was not aware of the

importance of the said documents, she could not inform her counsel on record,

as such could not file the documents before the trial court.

15. The lower Appellate Court on considering the said reason given by her

for filing an application under XLI Rule 27 of CPC held that the petitioner

failed to show that she exercised due diligence in producing the petition

mentioned documents. It was not that the documents were not within her

knowledge and that they were refused by the trial court when produced before

the trial court. The lower Appellate Court further observed that there was no

reference in the pleadings about the said documents and the suit was filed for

injunction, where prima facie possession as on the date of filing of the suit was

the criteria for granting injunction and the documents other than the deed of

conveyance filed were dated subsequent to the date of fling of the suit, held that,

they were not relevant for deciding the aspects.

16. As the Appellate Court can permit additional evidence only if the

conditions laid down under XLI Rule 27 of CPC are satisfied and the lower

Appellate Court was of the view that the said documents were not required to

pronounce a satisfactory judgment and as the petitioner - appellant - plaintiff

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was not as of right entitled for a fresh opportunity to produce evidence and the

reason given by the petitioner - appellant in her affidavit is not satisfactory that

though she was in possession of the deed of conveyance by the date of

pronouncement of judgment by the trial court, failed to file the same before the

trial court, this Court does not find any illegality or irregularity in the order of

the lower Appellate Court in dismissing the said petition.

17. In the result, the Civil Revision Petition is dismissed confirming the order

dated 09.09.2019 passed in I.A.No.254 of 2019 in A.S.No.30 of 2018 by the

learned VI Additional District Judge, Siddipet. No order as to costs.

As a sequel, miscellaneous applications pending in this petition, if any,

shall stand closed.

____________________ Dr. G. RADHARANI, J Date: 03rd March, 2025 Nsk