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2006 DIGILAW 787 (AP)

Dasari Perumal v. D. M. Govindaswamy

2006-07-07

L.NARASIMHA REDDY

body2006
ORDER The petitioners are the respondents in A.S.No.23 of 2004 on the file of the Senior Civil Judge, Puttur. They filed I.A.No.83 of 2005 under Order 13 Rule 10 read with Section 151 C.P.C. and Section 45 of the Evidence Act to send for the case boundle in A.S.No.88 of 1990 on the file of the same Court from the Central Record Room, Chittoor. The purpose was to compare the signatures of an Advocate by name T. Venkatrathnam on Ex.A-3, which is part of record in A.S. No.23 of 2004 and those said to be available in A.S.No.88 of 1990. Through its order, dated 20-8-2005, the lower appellate Court dismissed the I.A. Hence, this civil revision petition. 2. Sri V. Jagapathi, the learned counsel for the petitioners, submits that the effort of the petitioners was to ensure that the genuinity of the documents, which are part of the record in the suit, is established and that the lower appellate Court ought to have acceded to the request of the petitioners. 3. Sri M.P. Chandramouli, the learned counsel for the respondent, on the other hand, submits that the exercise undertaken by the petitioners was contrary to the settled principles of law and that the lower appellate Court rejected the application on being satisfied that it was not maintainable. 4. The respondent filed O.S.No.103 of 1999 in the Court of the Principal Junior Civil Judge, Puttur against the petitioners for the relief of perpetual injunction in respect of the suit schedule property. On behalf of the respondent, P.Ws.1 to 4 were examined and Exs.A-1 to A-9 were marked. On behalf of the petitioners, D.Ws.1 and 2 were examined and Exs.B-1 to B-11 were marked. Apart from that, a Court witness was examined as C. W.1. On a consideration of the oral and documentary evidence before it, the trial Court dismissed the suit on 20-4-2004. Aggrieved thereby, the respondent filed A.S.No.23 of 2004. 5. At the stage of arguments, in A.S.No.23 of 2004, the petitioners filed the present application i.e. I.A. No.83 of 2005 with a prayer to send for the entire record in A.S.No.88 of 1990. They invoked Rule 10 of Order 13 C.P.C. and Section 151 C.P.C., apart from Section 45 of the Evidence Act. Admittedly, the purpose of sending for the said record was to undertake comparison of certain signatures. They invoked Rule 10 of Order 13 C.P.C. and Section 151 C.P.C., apart from Section 45 of the Evidence Act. Admittedly, the purpose of sending for the said record was to undertake comparison of certain signatures. Such an exercise can be undertaken only with reference to the documents, which are part of the record in the suit or the appeal, as the case may be. Any effort to undertake comparison with a document, which is not part of the record, is impermissible. 6. By and large, the production of fresh evidence at the stage of appeal, is not permitted. Whenever any party to an appeal intends to adduce additional evidence at appellate stage, necessary application under Rule 27 of Order 41 has to be made and the various circumstances provided for under it must be proved to the satisfaction of the Court. It is only then, that the appellate Court can consider the feasibility of permitting additional evidence, to be adduced at appellate stage. In the instant case, the petitioners did not identify any document to be adduced as additional evidence in the appeal. They were under obligation not only to identify such document, but also to plead and prove to the satisfaction of the appellate Court, as to the circumstances that prevented them from adducing such evidence at the stage of trial, and the necessity to undertake that exercise at the stage of appeal. The whole bundle in a different case cannot constitute the matter for consideration or comparison before the appellate Court. 7. It must not be forgotten that an appeal is continuation of a suit and the appellate Court must restrict its consideration, to the record of the trial Court. It is impermissible to the appellate Court to deviate from the record, of the trial Court or to consider any other material. The lower appellate Court appreciated the matter from the proper perspective and this Court does not find any basis to interfere with the order under revision. 8. The civil revision petition is accordingly dismissed. There shall be no order as to costs.