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2008 DIGILAW 568 (AP)

Pechetti Rambabu v. Shazamani Begum

2008-07-25

P.S.NARAYANA

body2008
ORDER :- The civil revision petition was admitted on 22.2.2008 and in CRP MP No.1025/2008 interim stay was granted. CRP MP No.1736/2008 is filed to vacate the interim stay dated 22.2.2008 made in CRP MP No.1025/2008 in CRP No.783/2008. 2. The Counsel on record, Sri T.S. Anand, the learned Counsel representing the petitioner and Sri Udaya Bhasker representing Sri Kanakamedala Ravindra Kumar, the learned Counsel representing the respondent in the C.R.P., made a request for disposal of the main civil revision petition and hence, the civil revision petition itself is being disposed of by this Court, though the matter is appearing under the caption of interlocutory. 3. Sri T.S. Anand, the learned Counsel representing the petitioner would maintain that the learned VII Additional District Judge, (Fast Track Court), Visakhapatnam was unable to appreciate the scope and ambit of Order 41 Rule 27 of the Code of Civil Procedure. The learned Counsel also would further maintain that it is only by inadvertence the lawyer's notice sent by the respondent was not marked before the Court of first instance and in the light of the same, the said document to be marked at the appellate stage. The learned Counsel also would maintain that it is settled principle of law that an application filed under Order 41 Rule 27 of the Code of Civil Procedure has to be decided along with appeal and it cannot be dismissed at the threshold. The Counsel also placed reliance on certain decisions. 4. On the contrary, Sri Udaya Bhaskar representing Sri Kanakamedala Ravindra Kumar, the learned Counsel representing the respondent, would maintain that the said document - the office copy of the notice, was marked as EX.A.3 in the suit and hence, no purpose would be served by permitting the petitioner to bring on record the said notice. The learned Counsel also would submit that it is not the case of the petitioner that there is any difference between the office copy of the notice and the copy of the notice which is being produced at the appellate stage, hence, the civil revision petition is liable to be dismissed. 5. Heard the Counsel. 6. The revision petitioner-appellant filed the present revision under Article 227 of the Constitution of India being aggrieved of an order made in I.A. No.605/2007 in A.S. No.21/2007 on the file of VII Additional District Judge (Fast Track Court), Visakhapatnam. 5. Heard the Counsel. 6. The revision petitioner-appellant filed the present revision under Article 227 of the Constitution of India being aggrieved of an order made in I.A. No.605/2007 in A.S. No.21/2007 on the file of VII Additional District Judge (Fast Track Court), Visakhapatnam. The respondent herein is the plaintiff in O.S. No.656/2004 on the file of I-Additional Senior Civil Judge, Visakhapatnam, and the present petitioner-appellant is the defendant in the said suit and the suit was filed praying for a decree of eviction of the petitioner-appellant from the suit schedule property. In the light of the respective pleadings of the parties, having settled the issues, the Court of first instance recorded the evidence of PWs.1 to 3 and DWs.1 to 3, marked EX.AI to EX.A4 and EX.B1 to EX.B3 and ultimately decreed the suit giving 60 days time to the present petitioner-appellant-defendant to vacate the premises. Aggrieved by the same, the defendant carried the matter by way of appeal A.S. No.21/2007 on the file of VII Additional District Judge (Fast Track Court), Visakhapatnam and in the said appeal, the appellant filed the present application I.A. No.605/2007 under Order XLI Rule 27 of the Code of Civil Procedure praying for marking of the original lawyer's notice as additional evidence. It is stated that the said original lawyer's notice was filed by him along with his written statement on 20.10.2004 but by inadvertence, the same was not marked. The said application was resisted by filing counter wherein specific stand had been taken that this document had been taken into consideration and certain findings had been recorded in relation to the said document and hence, the said document need not be permitted to be exhibited as additional evidence. It is no doubt true that in the counter specific stand had not been taken that already the office copy of this notice had been exhibited as EX.A.3. But the fact remains that the office copy of the notice already had been marked as EX.A.3. Order XLI Rule 27 of the Code of Civil Procedure reads as hereunder :- "Production of additional evidence in Appellate Court :-(l) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But the fact remains that the office copy of the notice already had been marked as EX.A.3. Order XLI Rule 27 of the Code of Civil Procedure reads as hereunder :- "Production of additional evidence in Appellate Court :-(l) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (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, or (b) 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. (2) Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission." No doubt, reliance was placed on Pratap Rai N. Kothari v. John Braganza, (2001) 10 SCC 619 ; Mahavir Singh v. Naresh Chandra, AIR 2001 SC 134 ; K. Venkataramaiah v. Seetharama Reddy, AIR 1963 SC 1526 and Bombay Corporation i2 2.008(5) ALD Oct. v. Pancham, AIR 1965 SC 1008 . Unless the ingredients of Order XLI Rule 27 of the Code of Civil Procedure are satisfied, reception of additional evidence at the appellate stage not to be permitted. Here is a peculiar case, where the document sought to be marked by way of additional evidence, a copy of the same already had been on record marked as Ex.A.3, the same had been considered and certain findings had been recorded in relation thereto by the Court of first instance. It is not the case of the revision petitioner that there is any substantial difference, deviation or variation J in between the contents of EX.A.3 - office copy of the notice and the notice now produced before the appellate Court. It is not the case of the revision petitioner that there is any substantial difference, deviation or variation J in between the contents of EX.A.3 - office copy of the notice and the notice now produced before the appellate Court. When that being so, when the ingredients of Order XLI Rule 27 of the Code of Civil Procedure had not been satisfied at all, and especially when the office copy of the } selfsame notice already had been marked as I EX.A.3 and the same had been considered and the findings had been recorded by the Court of first instance, this Court is thoroughly satisfied that this application had been thought of only with a view to delay the disposal of the appeal and this application in this view of the matter is not a bona fide application at all. Hence, the impugned order does not suffer from any illegality, whatsoever, and accordingly, the civil revision petition shall stand dismissed. No costs.