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Andhra High Court · body

2006 DIGILAW 203 (AP)

Kappa Venkata Subba Raju v. Emmuri Sreeramulusetty Venkata Subbaiah Setty New Co. rep. by its Partners

2006-02-15

L.NARASIMHA REDDY

body2006
ORDER Respondents 1 and 2 herein filed O.S.No.37 of 1989 in the Court of Subordinate Judge, Nellore, against the petitioners, respondents 3 and 4, and another person, by name K. Srinivasulu, for recovery of certain amount. Four other similar suits also said to have been filed by respondents 1 and 2 against petitioners and some other parties. Through a common Judgment, dated 23-01-1998, the trial Court dismissed the Suits. A.S.No.7 of 1998 was filed by respondents 1 and 2, in the Court of III Additional District Judge, (Fast Track Court), Nellore, against the decrse in O.S.No.37 of 1989. 2. During the pendency of the appeal, respondents 1 and 2 filed IANo.123 of 2001 under Order 41 Rule 27 C.P .C. with a prayer to receive the registration certificate of their firm as additional evidence. The petitioners resisted the application. Through order, dated 09-03-2004, the lower appellate Court allowed the I.A. Hence, this Civil Revision Petition. 3. Sri K.Someswar Kumar, the learned counsel for the petitioners submits that there is a clear prohibition against an appellate Court from receiving additional evidence; and unless satisfactory reasons are stated as provided for under Rule 27 of Order 41 C.P.C., additional evidence cannot be received. He contends that in the instant case, except stating that respondents 1 and 2 have the certificate of registration of the firm, nothing was stated as to how they were prevented from filing the same, before the trial Court. 4. Mr. M.Venkata Narayana, the learned counsel for Respondents 1 and 2, on the other hand, submits that a specific plea was raised in the plaint that the firm was registered and though a certificate was obtained even while the suit was pending, due to inadvertence and lack of proper advice, it was not filed in the trial Court. He contends that one of the grounds, on which the suit was dismissed, was that the firm was not registered, and unless the registration certificate is taken on record, great injustice would be caused to respondents 1 and 2. 5.It is true that Rule 27 ofOrder41 C.P.C. starts with a prohibition against an appellate Court from receiving additional evidence, at the stage of appeal. This prohibition is, however, followed by certain exceptions, in which additional evidence can be received at appellate stage. 5.It is true that Rule 27 ofOrder41 C.P.C. starts with a prohibition against an appellate Court from receiving additional evidence, at the stage of appeal. This prohibition is, however, followed by certain exceptions, in which additional evidence can be received at appellate stage. The very purpose of making a provision for receiving additional evidence at appellate stage, subject to certain conditions, is to ensure that the parties do not suffer, on account of technicalities, and that the Court is provided with the entire material on record, so that it can undertake an effective adjudication. 6. In the instant case, respondents 1 and 2 specifically pleaded that their firm was registered. The petitioners came forward with a vague denial of that assertion. Though denial is one of the recognized contents of a written statement, a distinction needs to be maintained between the denials on the basis of personal knowledge and the denials due to lack of information. In the former case, the party, who denies the pleading of another, must have definite information, and in a way, must incorporate the same in his own pleading. I Where, however, the denial is based on lack of proper information, it must be stated so. 7. The question as to whether the firm is registered or not, is a matter of record. The plaintiff can plead that the firm is registered, if only registration, as such, existed. The question of filing the certificate, no doubt, is important, but it comes at a later stage. When a defendant intends to deny the assertion as to registration, he is expected to verify from the proper source and take his plea on the " basis of such verification. Vague denial in the matters, which are borne out by record, would not enable the Courts to arrive at a definite and proper conclusion. 8. For one reason or the other, there was certainly lapse on the part of respondents 1 and 2, in placing the registration certificate in relation to their firm, when the trial of the suit was in progress. Filing of such a certificate, would have avoided the finding by the trial Court, as to the maintainability of the suit itself. 8. For one reason or the other, there was certainly lapse on the part of respondents 1 and 2, in placing the registration certificate in relation to their firm, when the trial of the suit was in progress. Filing of such a certificate, would have avoided the finding by the trial Court, as to the maintainability of the suit itself. However, the lapse that has taken place at the stage of trial, cannot be permitted to result in complete denial of the rights of respondents 1 and 2, if registration certificate is borne out by record. It is not something, which can be brought into existence at the instance of the parties. If, in fact, there existed a registration certificate and it was not placed before the trial Court due to inadvertence, no prejudice can be said to have been caused to the petitioners, if it is received as additional evidence at the appellate stage. 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. The lower appellate Court discussed the matter at length and assigned cogent reasons for receiving the said document. It has also compensated the respondents (sic. petitioners) 1 and 2 by awarding costs. Therefore, this Court does not find any basis to interfere with the order under revision. 9. Hence, the Civil Revision Petition is dismissed. 10. The appeal is of the year 1998. The lower appellate Court is directed to dispose of the same within a period of three (3) months from to-day. It is further directed that inasmuch as what is received is only a certificate of registration, necessary evidence, in this regard, shall be recorded by the lower appellate court itself, without the necessity of remanding the matter to the trial court. There shall be no order as to costs.