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2024 DIGILAW 148 (AP)

Velidhi Viswanadham v. Velidhi Rajeswari (Died)

2024-01-30

KIRANMAYEE MANDAVA

body2024
JUDGMENT : 1. The civil revision petition is filed under Article 227 of the Constitution of India challenging the order dated 30.09.2023 passed in IA No.395 of 2022 in AS No.8 of 2019 on the file of the Senior Civil Judge, Rajam. 2. The learned Judge dismissed the application filed by the petitioner under Order XVI Rule 14 read with Order XLI Rule 27 and Section 151 of Code of Civil Procedure (for short "C.P.C.") rejecting the request of the petitioner to issue summons to the then RDO, Palakonda, to give evidence as a Court witness after verifying the proceedings in RC No.293/2015/KRC dated 27.04.2015. 3. The petitioner contends that he filed a suit in OS No.130 of 2011 on the file of Junior Civil Judge, Rajam against the respondents for permanent injunction. It is stated that before filing of the suit, he filed a petition before the Tahsildar, Rajam for issuance of Pattadar Pass books and the then Tahsildar, Rajam, issued pass books to the petitioner. Against the said order, it is stated that the respondents filed an appeal before the Revenue Divisional Officer, Palakonda. It is represented that the RDO, Palakonda, had passed an order vide proceedings in RC No.293/2015/KRC dated 27.04.2015, against the petitioner, and the said proceedings were marked as Ex.B3 and it is further stated that both the petitioner and respondents did not examine the said RDO, Palakonda, during the proceedings in the suit. It is represented that as the evidence of the RDO is essential for the disposal of AS No.08 of 2019, the petitioner filed IA No.395 of 2022 to issue summons the then RDO, Palakonda, to give evidence as a Court witness. 4. The respondents filed their counter-affidavit contending that the proceedings issued by the RDO, Palakonda, vide RC No.293/2015/KRC dated 27.04.2015 have already been marked as Ex.B3 and that the said order was passed after a full-fledged enquiry. In that view of the matter, it is contended that his personal appearance before the Court, in the witness box, to give evidence is not warranted. 5. Upon hearing both the petitioner and the respondents, learned Appellate Court, Rajam, dismissed the petition on the ground that the then RDO, Palakonda, issued proceedings vide RC No.293/2015/KRC dated 27.04.2015, after full-fledged enquiry and the same was marked as Ex.B3 in OS No.130 of 2011, before the Trial Court. 5. Upon hearing both the petitioner and the respondents, learned Appellate Court, Rajam, dismissed the petition on the ground that the then RDO, Palakonda, issued proceedings vide RC No.293/2015/KRC dated 27.04.2015, after full-fledged enquiry and the same was marked as Ex.B3 in OS No.130 of 2011, before the Trial Court. Learned Appellate Court observed that there is no specific provision under Order XLI to summon the witnesses before the Appellate Court and record evidence and observed that no sufficient grounds have been shown to summon the RDO, to give evidence. It is further observed that the process of recording of evidence should be done before the Trial Court during the trial, and further observed that since the proceedings issued by RDO, vide RC No.293/2015/KRC dated 27.04.2015 have already been marked as Ex.B3, the request of the petitioner to summon the RDO, cannot be accepted. Accordingly, the IA No.395 of 2022 was dismissed by the learned Appellate Court. Aggrieved by the same, the present revision petition has been preferred. 6. Heard the learned Counsel for the petitioner and respondents. 7. The provisions of Order XLI Rule 27 of C.P.C. reads as follows : Order XLI 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." 8. As noted from the above, unless the case is falling under any of the above mentioned clauses, the petitioner would not be entitled to produce additional evidence before the Appellate Court. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." 8. As noted from the above, unless the case is falling under any of the above mentioned clauses, the petitioner would not be entitled to produce additional evidence before the Appellate Court. The petitioner has failed to make out any case, showing that he would fall under any of the clauses of the Order XLI Rule 27. As per the material on record, the proceedings of the RDO, vide RC No.293/2015/KRC dated 27.04.2015, were marked as Ex.B3 before the Trial Court. Moreover, the said proceedings were issued after full-fledged trial by the RDO, the petitioner has failed to explain/furnish sufficient reasons in terms of Order XLI Rule 27 of C.P.C., seeking issuance of summons to the RDO, to give evidence, by verifying the proceedings in RC No.293/2015/KRC dated 27.04.2015. The learned Appellate Judge has therefore rightly dismissed the application filed by the petitioner in IA No.395 of 2022. 9. In that view of the matter, this Court finds no merit in the present revision petition and the same is liable to be dismissed. 10. Accordingly, the civil revision petition is dismissed. There shall be no order as to costs. 11. As a sequel, interlocutory applications, pending if any, shall stand closed.