( 1 ) THIS Civil Revision Petition is filed under article 227 of the Constitution of India. The petitioners herein are the plaintiffs, who seek to assail the orders in I. A. No. 371 of 2003 in A. S. No. 2 of 2000, dated 23-11-2001 on the file of the Court of Senior Civil Judge, Jagtial, karimnagar district, dismissing their application filed under Order XLI, Rule 27 (i) (b) read with Section 151 of the Code of civil Procedure, seeking to receive the certified copies of pahanies for the year 1986- 87,1985-86,1984-85,1983-84,1982-83,1981- 82,1980-81,1979-80,1978-79,1977-78,1976- 77, 1975-76, 1969-70, 1970-71 and 1971-72, holding that the petitioners failed to satisfy that the trial court refused to admit the evidence which ought to have been admitted, if such evidence is not within the knowledge of the petitioners after exercise of due diligence and the court requires for just decision. ( 2 ) A brief narration of facts necessary for appreciating the contentions raised herein may be set out. ( 3 ) THE petitioners have filed an appeal against the judgment and decree in O. S. No. 585 of 1988 on the file of the Court of district Munsif, Metpalli and the said appeal is pending adjudication before the Senior civil Judge, Jagtial. Petitioners came to know that real entries of the above pahanies are suppressed by the respondent, and therefore, they obtained certified copies of the above pahanies in respect of suit property. After obtaining the certified copies of pahanies, petitioners filed an application to receive the same as additional evidence to disprove the pahanies under Exs. A-3 to A-29 filed by the respondent and for the purpose of bringing the truth to disclose the fraud played by the respondent on the court below and on them. ( 4 ) RESPONDENT filed his counter reiterating that the petitioners under the guise of leading additional evidence they want to fill up lacuna in their evidence, more so, by filing application, petitioners are trying to introduce additional documentary evidence in the appeal. Further the documents sought to be filed by the petitioners were already marked by the court below in a series. There is an inordinate delay of more than twelve years in filing the application to receive the documents in evidence.
Further the documents sought to be filed by the petitioners were already marked by the court below in a series. There is an inordinate delay of more than twelve years in filing the application to receive the documents in evidence. It is further alleged that the first petitioner is the vao of Koratla village, where the suit land is situated and he is the person behind fabricating the revenue record. Petitioners are not entitled to produce additional evidence in the appellate court unless any of the three contingencies mentioned under order XLI, Rule 27 (1) CPC wherein clause (b) states that additional evidence in appeal can be received only when the appellate court requires any additional document to be produced to enable it to pronounce the judgment or for any other substantial cause. Petitioners examined d. Ws. 1 to 8 and marked the documents ex. B-1 to B-29. Therefore, the material available on record is sufficient to dispose of the appeal without receiving any additional documentary evidence. ( 5 ) CONSIDERING the facts and circumstances, the learned Senior Civil Judge, jagtial, dismissed the aforesaid application holding that the petitioners are not entitled to adduce additional documentary evidence. Assailing the correctness of the order passed by the learned Senior Civil Judge, petitioners filed the present revision. ( 6 ) THE learned counsel for the petitioners in support of his contention relied on a judgment of Constitutional Bench of the Apex court in K. Venkataramaiah v. A. Seetharama reddy and others. The learned counsel for the petitioners submit that in para 19 of the said judgment, it is stated that Rule 27 (1) (b) of order 41 of the Code, which contemplates that the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any substantial cause the appellate court may allow such evidence and whereas in para 21 of the said judgment, the learned counsel submitted that on the principle laid down in Jagarnath Pershad v. Hanuman Pershad, 36 Ind. App.
App. 221 (PC) that when additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on, the appellant cannot now be heard to say that the additional evidence was taken in this case in breach of the provisions of law. ( 7 ) ON the other hand, the learned counsel for the respondent submitted that the supreme Court on an occasion considered the said provision of law in Mahavir Singh and others v. Naresh Chandra and another to enable the appellate court to receive additional evidence as contemplated under order 41, Rule 27 CPC. When once the appellate court refuses to receive additional evidence under Rule 27 in a Revision against the order of refusal of lower appellate court, the High Court cannot interfere particularly when the appeal is not before it. ( 8 ) THE Hon ble Supreme Court in para 5 of the said judgment held that: before we proceed further we would like to refer to the scope of an application under Order XLI, Rule 27 CPC. Section 107 CPC enables an appellate court to take additional evidence or to require such other evidence to be taken subject to such conditions and limitations as are prescribed under order XLI, Rule 27 CPC. Principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. However, section 107 (d) CPC is an exception to the general rule, and additional evidence can be taken only when the conditions and limitations laid down in the said rule are found to exist. The court is not bound under the circumstances mentioned under the rule to permit additional evidence and the parties are not entitled as of right to the admission of such evidence and the matter is entirely in the discretion of the court, which is, of course, to be exercised judiciously and sparingly. The scope of Order XLI, Rule 27 CPC was examined by the Privy Council in kesawji Issue v. GIP Railway (1907) ILR 31 Bom.
The scope of Order XLI, Rule 27 CPC was examined by the Privy Council in kesawji Issue v. GIP Railway (1907) ILR 31 Bom. 381 in which it was laid down clearly that this rule alone can be looked to for taking additional evidence and that the court has no jurisdiction to admit such evidence in cases where this rule does not apply. Order XLI, rule 27 CPC envisages certain circumstances when additional evidence can be added; (i) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) 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 (iii) the appellate Court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. In the present case, it is not the case of either party that the first situation is attracted. So far as the second circumstance noticed above is concerned, question of exercise of due diligence would not arise because the concerned scientific equipment from which examination is sought tobe made itself was not in existence at the time of trial and so that clause is also not attracted. In the third circumstance the appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause. The expression "to enable it to pronounce judgment" has been subject of several decisions including Syed Abdul Khader v, Rami reddy AIR 1979 SC 553 , wherein it was held that when the appellate court finds itself unable to pronounce judgment owing to a lacuna or defect in the evidence as it stands, it may admit additional evidence. The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence (See the Municipal Corporation of Greater bombay v. Lala Pancham, AIR 1965 SC 1008 ).
The ability to pronounce a judgment is to be understood as the ability to pronounce a judgment satisfactory to the mind of court delivering it. It is only a lacuna in the evidence that will empower the court to admit additional evidence (See the Municipal Corporation of Greater bombay v. Lala Pancham, AIR 1965 SC 1008 ). But a mere difficulty in coming to a decision is not sufficient for admission of evidence under this rule. The words "or for any other substantial cause" must be read with the word "requires" which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate Court requires additional evidence that this rule would apply as noticed by the Privy Council in Kesowji issur v. GIP Railway (supra ). It is under these circumstances such a power could be exercised. Therefore, when the first appellate Court did not find the necessity to allow the application. We fail to understand as to how the High court could in exercise of its power under Section 115 CPC, could have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate Court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate Court passed the order on the application filed under order XLI, Rule 27 CPC the whole appeal was before it and if the first appellate Court is satisfied that additional evidence was not required, we fail to understand as to how the high Court could interfere with such an order under Section 115 CPC. In this regard, we may notice the decision of this Court in Gurdev Singh v. Mehnga ram (1997) 6 SCC 507 , in which the scope of exercise of power under section 115 CPC on an order passed in an application filed under Order XLI, rule 27 CPC was considered. When this decision was cited before the High court the same was brushed aside by stating that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order.
When this decision was cited before the High court the same was brushed aside by stating that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order. ( 9 ) THE learned Counsel therefore contended that if the petitioners are relying on Order 41, Rule 27 (1) (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. ( 10 ) AS seen from the appeal filed by the petitioners before the lower appellate court no proper explanation was given. On the other hand, he has stated in the affidavit that he came to know about the real entries of the pahanies, which are purposely suppressed by the respondent-plaintiff and as such he applied to the Mandal Revenue Officer, koratla for obtaining the certified copies of pahanies in respect of suit property. ( 11 ) I am satisfied that the learned counsel for the respondent has rightly contended that the principle to be observed ordinarily is that the appellate court should not travel outside the record of the lower court and cannot take evidence on appeal. When the first appellate Court passed the order on the application filed under Order XLI, Rule 27 cpc the whole appeal was before it and if the first appellate Court is satisfied that additional evidence was not required, I fail to understand as to how this court could interfere with such an order under section 115 CPC. Moreover, after suffering decree and filing appeal, the petitioner came forward with this application alleging fraud against the plaintiff-respondent, therefore, he should not be allowed to file such application in view of the established principle of law laid down by the Hon ble supreme Court in the decision referred supra 2, the learned Judge has satisfied himself to pronounce judgment and gave finding that if any changes of entries are made in the pahanies subsequent to the issuance of Exs. A-3 to A-35, such of those entries do not have any validity, and therefore, the petitioner was not permitted to adduce additional documentary evidence.
A-3 to A-35, such of those entries do not have any validity, and therefore, the petitioner was not permitted to adduce additional documentary evidence. ( 12 ) FOR the foregoing reasons, I see no reason to interfere with the order passed by the learned Senior Civil Judge, Jagtial, in i. A. NO. 371 of 2003 in A. S. No. 2 of 2000, dated 23-11-2001, dismissing the application filed under Order XLI, Rule 27 (i) (b) read with Section 151 of the Code of Civil procedure, seeking to receive the certified copies of pahanies. However, it is open for the petitioner to file such an application to call for the records for examination of the court. ( 13 ) THE CRP fails and is accordingly dismissed. No order as to costs.