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2002 DIGILAW 1401 (AP)

T. Manemma v. Bokki Shivanna

2002-12-04

DUBAGUNTA SUBRAHMANYAM

body2002
DUBAGUNTA SUBRAHMANYAM, J. ( 1 ) THIS revision petition is filed against the order dated 8-8-2001 in I. A. No. 153 of 2001 in A. S. No. 10 of 2000 on the file of Senior civil Judge, Wanaparthy. ( 2 ) THE revision petitioner - plaintiff filed a suit to recover money from the respondent - defendant. During the pendency of the suit, at the instance of the defendant two documents were sent to the Handwriting expert for his opinion. The Expert opinion was received by the court. Thereafter the defendant requested the trial court by filing an appropriate petition to record the evidence of the Expert by appointing a commissioner. The trial court appointed an advocate as commissioner to record the evidence of the said Expert. Thereafter the defendant did not pay the remuneration and expenses for the commissioner to go to Delhi and record the evidence of the Expert. Thereafter the petition for appointment of the commissioner was closed by the trial court. Thereafter, on a consideration of evidence adduced by both the parties, the trial court decreed the suit of the plaintiff. Aggrieved by the said judgment and decree of the trial court, the defendant filed an appeal before the Senior Civil Judge at wanaparthy in A. S. No. 10 of 2000. In that appeal, he filed a petition under Order XLI rule 27 C. P. C. , requesting the court to appoint a commissioner "to record the evidence of the Expert on his report in the interest of justice". In the affidavit filed in support of the said petition, the defendant pleaded that he was not provided any aid by the legal Aid Authority and therefore he did not examine the Expert though the trial court appointed the commissioner. He further pleaded that on the date of his application, he gathered some amount and is therefore able to meet the expenses of the commissioner. Making those allegations, he filed the petition concerned. The said petition was opposed by the plaintiff. The appellate Court allowed the said application and appointed one Advocate as commissioner for the purpose of examining the Expert at Delhi. Aggrieved by that order, the plaintiff preferred the present revision petition. ( 3 ) IN the petition the respondent herein did not seek the permission of the Appellate court to permit him to adduce additional evidence. The appellate Court allowed the said application and appointed one Advocate as commissioner for the purpose of examining the Expert at Delhi. Aggrieved by that order, the plaintiff preferred the present revision petition. ( 3 ) IN the petition the respondent herein did not seek the permission of the Appellate court to permit him to adduce additional evidence. In the affidavit also he did not make such a request. He simply requested the trial court to appoint a commissioner to record the evidence of the Expert. This is a serious lacuna in the petition filed by the respondent before the Appellate Court. However, I will proceed on the presumption that in the said application the respondent-defendant sought the permission of the appellate Court to adduce additional evidence before the Appellate Court. ( 4 ) IN the impugned order the Appellate court did not state anywhere that recording of additional evidence is necessary to enable it to pronounce the judgment or for any other substantial cause. The Appellate Court merely stated that in the circumstances explained by the petitioner therein, he is appointing a commissioner. This is an unsatisfactory way of dealing with an application filed under Order XLI Rule 27 c. P. C. ( 5 ) THE learned counsel for the revision petitioner contended that the impugned order did not satisfy any of the requirements of Order XLI Rule 27 C. P. C. It is his contention that the report of the handwriting Expert was available before the Appellate (sic. trial) Court during the pendency of the suit and therefore it cannot be said that the defendant is not aware of the said Expert opinion and that even after exercising due diligence he could not adduce evidence to prove (sic. disprove) the expert opinion already available on record. To meet this contention, the learned counsel for the respondent contended that the impugned order attracts the provision in order XLI Rule 27 (l) (b) C. P. C. Before considering the said provision, it. is necessary to point out that Order XLI rule 27 C. P. C. , makes it clear that parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court. Some exceptions are made out in the said provision to permit any of the parties to adduce additional evidence before the appellate Court. Some exceptions are made out in the said provision to permit any of the parties to adduce additional evidence before the appellate Court. One of the exceptions is covered by the provision in Order XLI rule 27 (l) (b ). The said provision lays down that if 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. As already pointed out, in the impugned order the Appellate court did not say that examination of the handwriting Expert is necessary to enable the Appellate Court to pronounce judgment. The Appellate Court did not also mention any substantial cause whatsoever for allowing the petition concerned. Therefore, the impugned order is not covered by the provision in Order XLI Rule 27 (l) (b) C. P. C. ( 6 ) THE learned counsel for the revision petitioner relied upon a judgment of this court reported in Chotelal v. Bholaram agarwal. A document was produced before the trial court. However it was not marked before the trial court. This court held in the above judgment that the Appellate Court cannot receive the same by way of additional evidence since it was not a document which was not within the knowledge of the plaintiff. The Appellate court dismissed the petition for additional evidence in that case. The said order of the appellate Court was upheld by this court in the revision petition. He also invited the attention of this court to a judgment dated 4-10-2001 of another learned Single Judge of this court in Myakla Konda Reddy v. Myakla keshava Reddy in C. R. P. No. 4194 of 2000. In that case before the Appellate Court a petition was filed requesting the Appellate court to permit the party to adduce additional evidence regarding some documents. Except one document, the remaining documents were already produced before the trial court and they were not exhibited before the trial court. In the order dated 4-10-2001 this court held that as far as the documents produced in the trial court are concerned, they cannot be permitted to be received as additional evidence at the appellate stage. Except one document, the remaining documents were already produced before the trial court and they were not exhibited before the trial court. In the order dated 4-10-2001 this court held that as far as the documents produced in the trial court are concerned, they cannot be permitted to be received as additional evidence at the appellate stage. ( 7 ) THE learned counsel for the respondent relied upon a decision of the Supreme Court reported in Gurdev Singh v. Mehnga Ram. Relying on the above judgment, he contended that an order was passed by the appellate Court permitting a party to adduce additional evidence and interference with such an order by the revisional court is not permissible. I have carefully considered the entire judgment of the Apex Court. The apex Court held that Appellate Court has jurisdiction to pass order under Order XLI rule 27 (b) one way or the other and the said order can be challenged in the second appeal against the appellate decree and the High court should not have felt itself convinced that the order was without jurisdiction. It is already noticed that the impugned order does not attract the provision in Order XLI rule 27 (l) (b) C. P. C. Therefore, the above decision has no application to the facts of the present case. ( 8 ) THE learned counsel for the respondent placed reliance upon another judgment of the Apex Court reported in Mandanlal v. Shyamlal. In that case, defendant produced certain documents in the trial court after closure of the evidence on the plaintiff s side. The trial court rejected the said application for want of sufficient cause for the delay. The Apex Court held that the said order cannot be interfered by the High court under Section 115 C. P. C. , and it is open to the defendant to raise the issue in appeal in case a decree is passed against him. The said principle of law has no application to the facts on hand. The impugned order cannot strictly be construed as an interim order. If that order is allowed to stand, the respondent herein would be permitted to adduce additional evidence without satisfying any pf the mandatory conditions laid down in the provision in order XLI Rule 27 C. P. C. The lower appellate Court did not give any reasons for allowing the said petition. If that order is allowed to stand, the respondent herein would be permitted to adduce additional evidence without satisfying any pf the mandatory conditions laid down in the provision in order XLI Rule 27 C. P. C. The lower appellate Court did not give any reasons for allowing the said petition. It did not apply its mind and satisfy itself that for the effective disposal of the appeal pending before it, the additional evidence sought to be adduced before the Appellate Court is essential for the disposal of the appeal. For all the reasons stated above, I am satisfied that the impugned order is bad in law and it is liable to be set aside. ( 9 ) IN the result, the revision petition is allowed. The order in I. A. No. 153 of 2001 in a. S. No. 10 of 2000 is set aside. The said petition is dismissed without costs. (No costs ).