HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO CIVIL REVISION PETITION No. 1102 OF 2014 DATED 6th December, 2014.
BETWEEN Guttikonda Narasimha Rao ….Petitioner And Raghunath Mittal and ors …Respondents.
HONOURABLE SRI JUSTICE A. RAMALINGESWARA RAO CIVIL REVISION PETITION No. 1102 OF 2014
ORDER:
Heard learned Counsel for the petitioner and learned Counsel for respondents 1 and 2.
This Civil Revision Petition arises out of the order dated 24.02.2014 rejecting the application in I.A.No.245 of 2012 in A.S.No.26 of 2010 filed under Order 41 Rule 27 read with Section 151 CPC seeking to receive the copy of the petition filed by respondents 1 and 2 before the Commissioner, Adilabad Municipality, dated 19.03.2005 and the letter of the Commissioner of Municipal Council, Adilabad vide Roc.No.Ga/184/2005, dated 04.05.2005 and the letter written by him to Collector, Joint Collector, Revenue Divisional Officer, Tahsildar and Commissioner and the order of the High Court passed in Writ Petition No.16748 of 2012 dated 22.06.2012 as additional evidence. The said application was dismissed by the learned District and Sessions Judge, Adilabad by order dated 24.02.2014.
The first and second respondents filed suit in O.S.No.31 of 2005 before the learned Junior Civil Judge, Adilabad for recovery of rent and eviction of the petitioner from the suit schedule property and the said suit was decreed. An appeal in A.S.No.26 of 2010 was filed challenging the said judgment and decree. The learned District and Sessions Judge went into the merits of the claim and observed that the application filed at the appellate stage to receive additional evidence cannot be entertained without satisfying the provisions of Order 41 Rule 27 CPC and thereby dismissed the application holding that no where in the affidavit filed in support of the interlocutory application the petitioner has stated that even after exercise of due diligence the evidence sought to be produced was not within his knowledge or could not after exercise of due diligence be produced by him at the time when the decree appealed was passed.
Order 41 Rule 27 CPC reads as follows: “PROEDUCTION OF ADDITONAL 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.”
The Apex Court in State of Rajasthan Vs. T.N. Sahani {(2001) 10 SCC 619} held that the application for additional evidence should be decided along with the appeal considering the necessity of the documents sought to be adduced as additional evidence for pronouncing the judgment more satisfactorily. The same issue also came up for consideration before the Apex Court in Union of India Vs. Ibrahim Uddin {(2012) 8 SCC 148} wherein it was held that Order 41 Rule 27 CPC enables the appellate Court to take additional evidence in exceptional circumstances; that the appellate Court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence and that the matter is entirely within the discretion of the Court and is to be used sparingly. While considering the stage of consideration of application it was held that an application under Order 41 Rule 27 CPC should 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. It was thus held that an application for taking additional evidence on record at an appellate stage, even if filed during the penedncy of the appeal, is to be heard at the time of the 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 view of the aforesaid legal position, it is clear that the learned District and Sessions Judge erred in dismissing the application by gong into the merits of the case before considering the appeal. The learned District and Sessions Judge ought to have posted the application for adducing additional evidence and should have considered the relevancy of the evidence and the desirability at the time of disposing of the appeal.
In that view of the matter, the order under revision dated 24.02.2014 passed in I.A.No.245 of 2012 in A.S.No.26 of 2010 is set aside and the matter is remanded to the learned Judge, Family Court-cum-IV Additional District and Sessions Judge, Adilabad for disposal of the application in accordance with law.
The Civil Revision Petition is accordingly allowed. Miscellaneous petitions pending consideration if any in the Civil Revision Petition shall stand closed in consequence. No order as to costs.
JUSTICE A. RAMALINGESWARA RAO DATED 6th December, 2014.
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