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Andhra High Court · body

2008 DIGILAW 740 (AP)

Smt. Ajra Azmath v. Kurra Prameela

2008-09-06

P.S.NARAYANA

body2008
ORDER: On 1.2.2008 while admitting the civil revision petition, this Court in CRPMP No.547 of 2008 granted interim stay as prayed for until further orders. CRPMP No.4597 of 2008 is filed with prayer to vacate the interim stay granted on 1.2.2008 in CRPMP No.547 of 2008 in CRP No.419 of 2008 and pass suitable orders. When the vacate petition came up for hearing, Sri R.L.Narasimha Phani representing Sri A.Satyanarayana, learned counsel representing the revision petitioners and also Sri C.Raghu, learned counsel representing the vacate petitioner-respondent in the revision petition made a request for final disposal of the CRP itself. Hence, at that stage the CRP itself was heard finally by this Court. 2. The learned counsel representing for the revision petitioners Sri R.L.Narasimha Phani had taken this Court through the respective stands taken by the parties and also would maintain that when application under Order 41, Rule 27 of the Code of Civil Procedure (hereinafter referred to as 'the Code') had been filed the appellate court instead of hearing the said application and passing an order could have postponed the application by calling the same along with the appeal and could have disposed of the application along with the appeal. The learned counsel also had pointed out the order of this Court in C.R.P.No.5028 of 2006 and further relied on certain decisions to substantiate his submissions. 3. On the contrary, the learned counsel representing the respondent Sri C.Raghu would maintain that these applications are being filed only with a view to delay the hearing of the appeal. The counsel pointed out that previously an application under Order 41, Rule 27 of the Code had been filed and questioning the said order CRP No.5028 of 2006 was filed and this Court was pleased to direct the appellate court to consider I.A.No.416 of 2006 while deciding A.S.No.4 of 2002. Again another application had been filed to permit the revision petitioners to adduce oral evidence. The learned counsel would maintain that while deciding the application of this nature the provisions of Order 41, Rule 27 of the Code are to be satisfied and apart from this aspect of the matter when the revision petitioners propose to adduce oral evidence at the stage of appeal, such application to be scrutinized with care and caution. The learned counsel would maintain that while deciding the application of this nature the provisions of Order 41, Rule 27 of the Code are to be satisfied and apart from this aspect of the matter when the revision petitioners propose to adduce oral evidence at the stage of appeal, such application to be scrutinized with care and caution. The learned counsel would maintain that when the revision petitioners are making attempt to adduce oral evidence at the stage of appeal by furnishing certain names for the first time, whose names had not been furnished before the original court, no attempt at least had been made to examine any such witnesses. The learned counsel in all fairness would maintain that if such an attempt had been made, the same had been refused by the original court may be the present application could have been thought of. Even otherwise the averments made in the affidavit also do not satisfy the conditions specified in Order 41, Rule 27 of the Code. Hence the decisions relied upon by the counsel for the revision petitioners may not be applicable to the facts of the present case. 4. Heard the counsel. 5. The present revision petition is filed by the revision petitioners being aggrieved of an order made by the learned Senior Civil Judge, Avanigadda in I.A.No.810 of 2007 in A.S.No.4 of 2002, dated 17.12.2007. The said application was filed by the petitioners/ appellants praying for permission under Order 41, Rule 27 of the Code to examine the witnesses shown in the list by way of additional evidence. The said witnesses shown in the application are - Mohammed Jahiruddin, Mohamad Japarullakhan and Mohamad Nazeerrahaman. The ground specified is that the schedule property during the year 1996 is more than Rs.15,000/- per cent and the evidence of P.W.1 had been referred to and certain findings recorded by the trial court also had been pointed out and in the light of the same it is stated that the petitioners be permitted to adduce evidence for a limited extent of the value, during the year 1996 and, accordingly, furnished the list of witnesses to be examined. 6. A counter in detail had been filed resisting the said application. 6. A counter in detail had been filed resisting the said application. Specific stand had been taken that on the strength of the evidence available on record proper findings had been recorded and when the list of witnesses had not been furnished before the original court, the application to permit examination of witnesses at the stage of appeal normally not to be permitted and only with a view to further drag on the proceedings this application had been filed. 7. The learned Senior Civil Judge, Avanigadda, having formulated the point for consideration at para 6 recorded reasons at paras 7, 8 and 9 and ultimately dismissed the application without costs. 8. It is pertinent to note that the present application is filed for examining the witnesses specified in the application for the first time at the stage of appeal. No doubt, it is contended before this Court that in the light of the findings recorded relating to valuation of the property by the trial court, this being a subsequent event, these witnesses were not shown in the list of witnesses before the original court and hence by way of additional evidence the petitioners are to be permitted to examine these witnesses at the appellate stage. 9. Further, reliance was placed on the order made by this Court in C.R.P.No.5028 of 2006 and the said CRP was as against an order made in I.A.No.416 of 2006 in A.S.No.4 of 2002 i.e., the self same appeal on the file of the Senior Civil Judge, Avanigadda. Learned Judge of this Court no doubt observed at para 2 as hereunder: "Since it is well known that a petition under Order 41, Rule 27 C.P.C. has to be decided along with the appeal, the order under revision is set aside, with a direction to the learned Senior Civil Judge, Avanigadda to consider I.A.No.416 of 2007 while deciding A.S.No.4 of 2002 on its file, the revision stands disposed of. No costs." 10. No costs." 10. Further, strong reliance was placed on the decision of the Apex Court in State of Rajasthan v. T.N.Sahani and others1 wherein the Apex Court at para 4 held as under: "It may be pointed out that this Court as long back as in 1963 in K.Venkataramiah v. Seetharama Reddy ( AIR 1963 SC 1526 ) pointed out the scope of unamended provision of Order 41 Rule 27(c) that though there might well be cases where even though the court found that it was able to pronounce the judgment on the state of the record as it was, and so, additional evidence could not be required to enable it to pronounce the judgment, it still considered that in the interest of justice something which remained obscure should be filled up so that it could pronounce its judgment in a more satisfactory manner. This is entirely for the court to consider at the time of hearing of the appeal on merits whether looking into the documents, which are sought to be filed as additional evidence, need be looked into to pronounce its judgment in a more satisfactory manner. If that be so, it is always open to the court to look into the documents and for that purpose amended provision of Order 41, Rule 27(b) CPC can be invoked. So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reason given for the dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file. The High Court will now consider the appeal and the application and decide the matter afresh in accordance with law." 11. In Kotha Sathyamma v. Irukula Praveen Kumar2 a learned Judge of this Court observed at paras 6, 7 and 8 as under: "Order 41 Rule 27 CPC empowers the appellate Court to receive additional evidence under the circumstances stipulated therein. In Kotha Sathyamma v. Irukula Praveen Kumar2 a learned Judge of this Court observed at paras 6, 7 and 8 as under: "Order 41 Rule 27 CPC empowers the appellate Court to receive additional evidence under the circumstances stipulated therein. The petitioners came forward with such an application and sought to place two documents before the lower appellate court. The controversy, as to whether it is open to an appellate court to deal with an application filed under Rule 27 Order 41 CPC while hearing the appeal or at a stage before it, was put at rest by the Supreme Court in State of Rajasthan's case (supra). It was held that such applications are required to be taken up, while hearing the appeal and not at a stage earlier thereto. In that view of the matter, the orders under revisions cannot be sustained. The defect is not as to the nature of disposal given to it, but about the stage, at which they are taken up. It is true that in Mahavir Singh's case, the Supreme Court held that if an application filed under Rule 27 of Order 41 CPC is rejected by an appellate Court, the remedy is to raise a corresponding ground in the subsequent appeal and not by way of filing a revision under Section 151 CPC. However, if the ratio in case of State of Rajasthan (supra) is applied, this eventuality does not arise. On the other hand, if the application filed under Rule 27 of Order 41 CPC is dealt with, while hearing the appeal, the necessity to challenge the order separately does not arise. In a way, it can be said that if the principles laid in both the cases are read together, it would give rise to a situation of begging the question. However, having regard to the fact that in State of Rajasthan's case (supra), the question as to the stage of disposal of the application was specifically dealt with, and squarely covers the facts of this case, the same is followed and the orders under revisions are set aside. The applications shall stand restored and the lower appellate court shall deal with the same, while hearing he appeal. It shall not treat the observations made by it in the orders under revisions as valid or binding." 12. The applications shall stand restored and the lower appellate court shall deal with the same, while hearing he appeal. It shall not treat the observations made by it in the orders under revisions as valid or binding." 12. This is not a case where permission was prayed for, for reception of documentary evidence at the appellate stage. It is no doubt true that Order 41 Rule 27 of the Code refers to "whether oral or documentary". The said provision deals with production of additional evidence in appellate court and the same reads as hereunder: "Rule 27. Production of additional evidence in Appellate Court: (1) 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." 13. It is needless to say that unless any one of the conditions specified in the said provisions of Order 41, Rule 27 of the Code is satisfied, the question of allowing such application would not arise. It is no doubt true that instead of deciding such application the same may be postponed and at the time of hearing of the appeal the said application also may be considered along with the appeal and while deciding the appeal if the court is satisfied that such documents produced at the stage of appeal also are necessary for proper adjudication of questions in controversy, the same may be received or the court may not be inclined to receive, depending upon the facts and circumstances of a given case. 14. 14. It is no doubt true that Order 41, Rule 27 of the Code refers to both oral and documentary evidence. Order 41, Rule 28 of the Code deals with mode of taking additional evidence. Order 16 of the Code deals with summoning and attendance of witnesses. Order 16, Rule 1 of the Code deals with list of witnesses and summons to witnesses. Order 16, Rule 1-A of the Code deals with production of witnesses without summons. 15. It is not in serious controversy that in the present case, no attempt had been made to furnish any one of the names shown in the present list of witnesses before the original court. It is not the case of the revision petitioners that an attempt was made to furnish the names of these witnesses in the original court and the same was refused and the same was made a ground of attack in the present appeal. 16. Normally in the absence of any such ground of attack in the appeal or when the Court is satisfied that none of the ingredients or essentials of Order 41, Rule 27 of the Code are satisfied, especially in a case where the prayer prayed for is for examination of witnesses at the stage of appeal, this Court is of the considered opinion that such application necessarily need not be postponed for being heard along with the appeal and in such circumstances the relief may be negatived. Hence the order impugned does not suffer from any legal infirmity whatsoever and hence the C.R.P shall stand dismissed with costs. 17. The civil revision petition is accordingly dismissed with costs as stated supra.