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2016 DIGILAW 410 (AP)

Sk. Chotee Bee v. Sk. Sujana

2016-08-01

B.SIVA SANKARA RAO

body2016
ORDER : B. SIVA SANKARA RAO, J. The revision petitioners are the appellants in A.S No. 110 of 2009. It is a suit for specific performance based on contract for sale filed by revision respondent. The 2nd revision petitioner is stated to be the legal representative of 1st petitioner since died. There is nothing to that effect of filing any memo of recording the factum of 1st petitioner died and 2nd petitioner is the only legal representative to bring on record. Thereby it is left open to the lower appellate court for nothing more required for purpose of the revision to refer or discuss on this aspect. 2. The trial court decreed the suit for specific performance and aggrieved thereby the defendants preferred the appeal. It is pending the appeal, the plaintiff/appeal respondent filed I.A No. 1036 of 2011, which is an application to receive as additional evidence by sending the suit sale agreement to an expert which contains the thumb impression of the 1st defendant as he disputes even proved otherwise. The application is accompanied by another application in I.A No. 773 of 2010 to reopen the evidence in the appeal pending. 3. The applications were opposed by the appellants as respondents to the applications stating that during trial the plaintiff filed one application to send the document to expert and same was not pressed and earlier also in the appeal I.A No. 774 of 2010 to send the document to expert and to receive the same and that was also not pressed before filing I.A No. 1036 of 2011 and the conduct no way permits much less with any entitlement, for lack of due diligence for earlier non-production of the purported additional evidence by seeking to send the document to expert to compare the thumb impression and to receive opinion pursuant thereto for the alleged additional evidence purpose. 4. The lower Court having been observed all these allowed saying sending of the document to expert to solicit the experts opinion to compare the thumb impression of the defendant by taking specimens in Court with the disputed thumb impression as it is exact science is necessary for the effective delivery of the judgment. 4. The lower Court having been observed all these allowed saying sending of the document to expert to solicit the experts opinion to compare the thumb impression of the defendant by taking specimens in Court with the disputed thumb impression as it is exact science is necessary for the effective delivery of the judgment. That is the sum and substance of the common order of the lower Court particularly at Para 10 after incorporation of the Order XLI Rule 27 CPC in verbatim in Para 9 however with observation to compensate by plaintiff, the defendants in awarding costs of Rs. 500/- only. 5. Same is impugned with the self same contentions of the counter in the lower Court attacking said discretionary power exercised by the lower appellate Court, vide order dated 16.08.2011 referred supra in I.A No. 1036 of 2011, saying further that the Court has no such power and went beyond its power. 6. Whereas it is the submission of the learned counsel for the revision respondent/plaintiff (appeal respondent) that the order of the lower Court is sustainable and it no way requires interference for this Court while sitting in revision within its limited scope. 7. Heard and perused the material on record including the expressions of the Apex Court placed reliance in N. Kamalam (Dead) v. Ayyasamy, Karnataka Board of Wakf v. Government of India and K.R Mohan Reddy v. Net Work Inc. Rep. Tr. M.D 8. It requires no reproduction of Order XLI Rule 27 as Para 9 of the impugned order of the lower Court contains the contents of the provision in verbatim. Rep. Tr. M.D 8. It requires no reproduction of Order XLI Rule 27 as Para 9 of the impugned order of the lower Court contains the contents of the provision in verbatim. Sub Rule 1 of Rule 27 of Order XLI CPC speaks with negative wording of the parties to the appeal shall not be entitled to produce additional evidence whether oral or documentary in the appellate Court; but if the Court from whose decree the appeal is preferred has refused to admit which ought to have admitted or 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 the power of the appellate Court where it requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause to allow such evidence or document to be produced or witness to be examined. The Court shall record the reasons for its admission of additional evidence as per sub Rule 2. The sub Rule 1 containing Clauses (a) with (aa) and (b) of which Clause (a) and (aa) unless any of those prerequisites satisfied, parties are not entitled to adduce additional evidence. Whereas sub Rule 1 (b) is the discretionary power of the Court despite no right of any of the parties within/out of the meaning of (a) or (aa) of Sub Rule 1, provided for the Court felt necessary for effective adjudication of the lis. 9. The expression placed reliance of Karnataka Wakf Board Supra particularly at Para 6 only considered the scope of Order XLI Rule 27(1)(a) & (aa) CPC in saying in the absence of comply with the requirements of (a) or (aa) of Sub Rule 1, party is not entitled. The scope of sub rule 1 (b) of the power of the Court, there not arisen for consideration undisputedly. Coming to the expression in Kamalam supra, there is a reference of the power of the Court also under sub Rule 1 (b) while saying partys right is not automatic under Sub Rule 1 of Rule 27 without complying any of the requirements laid down. Coming to the expression in Kamalam supra, there is a reference of the power of the Court also under sub Rule 1 (b) while saying partys right is not automatic under Sub Rule 1 of Rule 27 without complying any of the requirements laid down. However, the subsequent expression of the Apex Court in KRM Reddy supra, particularly, at Para 18 crisply the scope of Order XLI Rule 27(1) particularly of (a) and (aa) vis-a-vis scope of 1(b) was well considered. Here, the party who moved the application is not entitled to seek for adduction of additional evidence for no due diligence as contemplated for not a case the subsequent event arisen to consider or earlier he could not notice, more particularly, for such saying the facts bar him. As pending suit itself, an application was filed in I.A No. 258 of 2007 and not pressed the same to reopen to send the document to expert and even in the appeal along with reopen application in I.A No. 773 of 2010 filed I.A No. 774 of 2010 and that I.A No. 774 of 2010 only not pressed while keeping I.A No. 773 of 2010 pending in filing the fresh petition in I.A No. 1036 of 2011. 10. It is also one of the contentions of the learned counsel for the revision petitioners that earlier not pressed application not only before the trial Court but also before the appellate Court constitutes res judicata or obitor and this Court cannot exercise such a power even the case considered falling under clause (b) of sub rule 1 of Rule 27 of Order XLI CPC. In fact the law is fairly settled by the Constitution Bench expression of the Apex Court in Satyadhyan Ghosal v. Smt. Deorjin Debi that to constitute the interlocutory application orders as res judicata, it must be an appealable order or a final order. Here the application under Order XLI Rule 27 CPC read with Section 45 of Evidence Act and under XVIII Rule 17 CPC as the case may be are not appelable ones, from any order passed much less a deemed decree to operate as a res judicata. Thus suffice to say that is no way a bar to power of the Court to exercise under Order XLI Rule 27(1)(b) CPC from the principle of law laid down in KRM Reddy Supra. Thus suffice to say that is no way a bar to power of the Court to exercise under Order XLI Rule 27(1)(b) CPC from the principle of law laid down in KRM Reddy Supra. A single Judge expression of this Court in K.C.P Reddy v. Dadiboina Guraiah in similar facts of an application to receive additional evidence allowed by the lower appellate Court under Order XLI Rule 27 by sending the document to expert and receive report, was set aside while sitting in revision saying scope of Rule 27 of Order XLI CPC no way automatically enables a party to exercise the discretion by the Court. It is to say the Court considered only scope of Rule 27(1)(a) & (aa) and did not considered the scope of Rule 27(1)(b) and the expression of KRM Reddy of the Apex Court not even brought to its notice on the scope of Rule 27(1)(b) CPC. 11. Though it can be said, party has no right for not within the scope of Order XLI Rule 27(1)(a) & (aa), it is not a bar to exercise the power by the Court under Order XLI Rule 27(1)(b) CPC and that the crux of the law laid down though not in exact words, on the scope of clause (b) by the Apex Court in KRM Reddy supra at Para 18 middle which reads as under: 12. On the other hand clause (b) to sub rule 1 of Rule 27 of Order XLI CPC is to be taken recourse to, the appellate Court was bound to consider the entire evidences on record and come to an independent finding for arriving at a just decision, adduction of additional evidence as has been prayed by the appellant was necessary. 13. From its reading it is not only suo motu, but also even there is a prayer from a party under Rule 27 even not entitled for not satisfying the requirements of clause (a) & (aa), once the Court feels it is just and necessary under clause (b) it can take, is the sum and substance that what is referred supra. 14. Now impugning the order of the lower Court in the revision maintained, it is to be considered the impugned order findings are within the scope of clause (b) of the power of the Court or not. 14. Now impugning the order of the lower Court in the revision maintained, it is to be considered the impugned order findings are within the scope of clause (b) of the power of the Court or not. The lower appellate Court in allowing the application in categorical terms observed that it is for the plaintiff in a suit for specific performance from the defendants dispute, the thumb impression of the executant to establish the same and for the defendants to rebut. Even there is oral evidence when the thumb impression in question since in dispute and it is exact science as per the settled law, sending of the document to expert will clinch the issue, if at all the thumb impression is tallied or not tallied for arriving at a correct finding from the entire matter at large within the duty of first appellate Court to appreciate as an ultimate fact finding Court. It is because the combined reading of Order XLI Rule 33 read with Rules 22 & 24 CPC, only between the parties to the appeal and not against third parties to give any adverse observation, the entire matter is at large, for the first appellate Court has a duty to appreciate afresh as a conclusive fact finding Court for the second appeal involves question of law to admit even. Since the executant disputes the thumb impression, once the expression say for rendering complete justice within the power of the Court to mould the relief, and for effective adjudication even party not entitled from not showing the compliance of Order XLI Rule 27, on such application, to exercise the power of the Court under clause (b) of Sub Rule 1 of Rule 27 of Order XLI, it can do so. Once the lower appellate Court when did so, practically there is nothing for this Court while sitting in revision, but for to say having rightly held to compensate by costs what the amount awarded of Rs. 500/- is hardly sufficient to raise the costs to Rs. 5,000/-. 15. No doubt receiving expert opinion by sending the document is one thing and adducing the additional evidence by the parties thereby is another thing. 500/- is hardly sufficient to raise the costs to Rs. 5,000/-. 15. No doubt receiving expert opinion by sending the document is one thing and adducing the additional evidence by the parties thereby is another thing. Here the expert opinion has to support by reasons contemplated by Section 51 of the Evidence Act, for the conclusions to be arrived on the report that is also required to be tested by right of the parties with right of chief and cross-examination, if at all anybody to examine or for the Court to examine and mark the document as to a Court document, by affording a right of cross-examination to both the parties. For that evidence of the expert if it is shown necessary, either to secure and examine in person by the Court or issue commission to examine through advocate commissioner either as a court witness or asked by any of the parties as a witness on their side and to pass appropriate further orders either to record such evidence by the appellate Court itself or to remand the matter for the limited purpose as contemplated by Section 107(1)(b) read with Order XLI Rule 26-A & 27 CPC. Undisputedly pursuant to the lower appellate Courts order (impugned) the expert opinion is received and arguments also submitted and the appeal is reserved for judgment. The appeal pending is of the year 2009. 16. Having regard to the above, instead of allowing the lower appellate Court to pronounce judgment by giving further life to litigation to agitate, this Court felt it just to direct the lower Court to reopen the matter and cause examine either by itself or by directing the trial Court through commission the expert either as a Court witness or a witness of the plaintiff, who filed I.A No. 1036 of 2011, to call for the report with right of cross-examination to the defendants/appellants to bring said expert opinion with reasons on record from such examination of the expert only for appreciation with reference to that also afresh from the entire matter at large within the scope of Order XLI Rules 24 & 33 CPC. 17. Accordingly and in the result, the revision petition is disposed of subject to above observations and by enhancing the costs from Rs. 500/- to Rs. 17. Accordingly and in the result, the revision petition is disposed of subject to above observations and by enhancing the costs from Rs. 500/- to Rs. 5,000/- to pay to other side by the petitioner before lower appellate Court else to execute and recover by the Court and to pay. 18. Consequently, miscellaneous petitions, if any shall stand closed. No costs.