Andhra HC (Pre-Telangana)
Jammala Ramulu And Others vs Jammala Rajaiah And Others on 12 June, 1998
Equivalent citations: 1998(4)ALD221, 1998(4)ALT81, AIR 1998 ANDHRA PRADESH 394, (1999) 1 CIVLJ 460, (1998) 4 ANDHLD 221, (1998) 2 APLJ 362, (1998) 4 ANDH LT 81, (1998) 2 LS 43
Author: Bilal Nazki
Bench: Bilal Nazki
ORDER
1. The respondents filed a suit being OS No.31/91 on the file of District Munsif, Medchal, Rangareddy District against the father of the present petitioner namely \ateJ.Pentaiah, The suit was decreed on 2nd March, 1995. When the suit was decreed the defendant i.e., late J, Pentaiah was alive and he filed an appeal being AS No.28 of 1995 before II Additional District Judge, Rangareddy District at Saroornagar. The appellant SriPenfaiah died on 1st March, 1997. The present petitioner became party to the appeal as legal heir of late Sri J. Pentaiah. He moved an application before the appellate Court in October, 1997 praying that an agreement executed between the parties to the suit dated 28th January, 1990 be received as additional evidence. The application has been rejected by the appellate Court. Hence this revision.
2. The suit had been filed in the j^ar 1991, it was decreed on 2nd March, 1995 and an application for receiving the additional evidence was made only in October, 1997. In para 4 of the application moved before the appellate Court the petitioner stated that, it was because of oversight that the agreement of January, 1990 was not produced before the trial Court. He submitted that in between the parties there were two agreements one dated 26-10-1975 and another dated 28-1-1990, both had been produced before the Revenue authorities and while taking the evidence of the Revenue authorities it transpired that agreement dated 28-1-1990 was not reflected in the revenue records for reasons not known to the petitioner. Subsequently, in the application it has been stated by the petitioner that the original of the said agreement dated 28-1-1990 had been misplaced and could not be filed earlier.
3. An application for receiving additional evidence at the appellate stage could only be allowed if conditions laid down in Rule 27 of Order 41 CPC are satisfied. Rule 27 lays down :
"Production of additional evidence in Appellate Court
27. (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 die 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.'' In the present case we are concerned with Rule 27(l)(aa). Before a party is allowed to produce additional evidence he has to establish that the 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. This provision makes it clear that, it is not as a matter of right that any party can walk into the appellate Court and seek grant of permission to produce the additional evidence. In the present case nothing lias been shown by the petitioner that the evidence which is sought to be produced was not within his knowledge or, if it was within his knowledge it could not have been produced even after exercise of due diligence. The agreement sought to be produced is allegedly executed in the year 1990. The suit was filed in 1991 which was decreed in 1995. Till October, 1997 no steps were taken to produce this evidence. The Supreme Court in Roop Chand v. Gopi Chand, , while refusing production of secondary evidence at the appellate stage held:
"11. On a consideration of the matter we think the objections raised by the appellant's Counsel for the filing of additional evidence by the respondent in the appeal proceedings before us merits acceptance. It is true that the documents sought to be filed by way of' additional evidence are indisputably the audited balance sheets and reports submitted by the club but even so the fact remains that all the documents could have been obtained and filed by the respondent before the trial Court itself since the judgment had been rendered by the trial Court only on 22-2-1997. Even if the respondent was not able to file the documents before the trial Court, he could have filed the documents before the Appellate Court and sought its permission to file them as additional evidence. Even before the High Court there was no attempt in this behalf. No satisfactory explanation lias been offered by the respondent for having failed to produce the documents before the Courts below or the High Court. In such circumstances, we see no justification to allow CMP No.906/79 and permit the respondent to file the documents in question as additional evidence in the proceedings. Accordingly CMP No.906/79 is dismissed."
4. For these reasons I do not find any merit in this revision which is accordingly dismissed.