Court No. - 33
Case :- MATTERS UNDER ARTICLE 227 No. - 7644 of 2018 Petitioner :- Vipin Kumar Respondent :- The Additional District And Session Judge, Court No.12, Agra And 19 Others Counsel for Petitioner :- Ramendra Asthana
Hon'ble Manoj Misra,J.
Supplementary affidavit filed today, is taken on record.
By this petition the petitioner, who is defendant no.4 in Original Suit No.504 of 1990, has challenged the order dated 1st March, 2017, passed by the court of Additional Civil Judge (Sr. Div.), Court No.3, Agra and the order dated 21st May, 2018, passed by Additional District & Sessions Judge, Court No.12, Agra in civil revision no.47 of 2017.
According to the learned counsel for the petitioner, the petitioner (defendant no.4) had filed an application 283 Ga to bring on record certain documents. According to him without passing any order on the said application a date for leading of evidence by defendant was fixed.
However, it appears from the record that the defendant repeatedly sought adjournment for leading evidence. Ultimately, 20th February, 2017 was fixed, by way of last opportunity, to lead evidence. On that day also adjournment was sought, which was rejected. To recall the said order, application 289 Ga was filed which was partly allowed by impugned order dated 1st March, 2017 in the sense that prayer to recall the order dated 20th February, 2017 was rejected but the petitioner was given liberty to press the application 283 Ga. Against the order dated 1st March, 2017 revision was filed which has been dismissed by impugned order dated 21st May, 2018 upon finding that there was no legal error in the order of the trial court.
During the course of arguments, Sri Ramendra Asthana, learned counsel for the petitioner, invited attention of the court to an order passed by this court dated 7th March, 2017 from which it appears that against a similar order, the petitioner had earlier approached this Court by filing petition under Article 227 No.1407 of 2017. In that petition, this Court had observed that under Order 41, Rule 27 CPC, the appellate court has power to take on record additional evidence which was wrongly denied by the trial court from being taken on record and therefore the petitioner would have right to move application under Order 41, Rule 27 CPC before the appellate court in the event of an appeal against the final judgement and decree passed by the trial court. Accordingly, the said matter was disposed off by this court by observing that in the event of an appeal against the final judgement and decree passed by the trial court, it would be open to the petitioner to raise his grievance against the order impugned. It was also observed that in that eventuality the appellate court shall consider the same without being prejudiced by the fact that the revision preferred against the said order was dismissed. While observing as above, the court had also observed that power of an appellate court and the revisional court are distinct from each other. The revisional court deals with jurisdictional errors whereas the appellate court has wider power and, in fact, it is the continuation of the suit before the appellate court and accordingly any finding returned by the revisional court in respect of any interlocutory order passed by the trial court, may not be binding on the appellate court while exercising power as an appellate court under the Code of Civil Procedure.
It has thus been prayed that by preserving the right of the petitioner to raise appropriate plea before appellate court in an appeal against final judgement and decree, the petition be disposed off.
In view of the above, this matter is also disposed off by observing that the petitioner would have right to take all pleas permissible before the appellate court as and when an appeal is filed against the final judgement and decree passed by the trial court and would have right also to question the correctness of the orders passed by the trial court in respect of closing of defence evidence which shall, in the event of being raised, be addressed without being prejudiced by any observation of the revisional court.
With the aforesaid observations and liberty, the petition stands disposed off.
Order Date :- 29.10.2018. Rks.