Andhra Pradesh High Court - Amravati
B. Nagaraja Reddy vs B Sambo Sankar Reddy on 15 December, 2020
Author: Battu Devanand
Bench: Battu Devanand
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THE HON'BLE SRI JUSTICE BATTU DEVANAND
CIVIL REVISION PETITION Nos.770 & 803 of 2020
COMMON ORDER:
These two Civil Revision Petitions are filed under Article 227 of the Constitution of India aggrieved by the Common Order dated 27-01-2020 in I.A.Nos.107 and 109 of 2019 in A.S.No.73 of 2018 on the file of Principal District Judge, Chittoor.
02. Petitioner is the Plaintiff and the respondents are the Defendants in a suit in O.S.No.344 of 2012 on the file of II Additional Junior Civil Judge, Chittoor.
03. Brief facts of the case are that :
The petitioner filed a suit in O.S.No.344 of 2012 on the file of II Additional Junior Civil Judge, Chittoor, for grant of declaration for Plaint (B) and (C) schedule properties, deliver of vacant possession of 'B' schedule property and for permanent injunction restraining the defendants, their men and agents from interfering with the plaintiff's peaceful possession and enjoyment of the plaint "C" schedule property and for costs.
04. The said suit was dismissed on 05-06-2018. During the pendency of the said suit, the petitioner filed I.A.No.340 of 2013 under Order 26 Rule 9 r/w 151 of CPC, seeking appointment of an Advocate Commissioner for local inspection to note down the existing physical features in the suit schedule property and to note down the encroachments, if any, in 'A' and 'B' schedule property. The said application was dismissed on 07-10-2015. Against the decree and Judgment dated 05.06.2018 in O.S.No.344 of 2012, the 2 petitioner filed an appeal in A.S.No.73 of 2018 before the Principal District Judge, Chittoor, and it is pending.
05. In the said appeal, the petitioner filed I.A.No.109 of 2019 under Order 26 Rule 9 of CPC with a prayer to appoint an Advocate Commissioner to note down the physical features of the petition/appeal "C' schedule property so as to note that the petitioner laid underground pipeline from his well in Sy.No.266/6, which is on the western side of ' C' schedule land at a distance of 100 meters and also laid underground pipeline from his borewell in Sy.No.290/1, which is on the southern side of the petition "C' schedule land at a distance of 1200 meters and to note down that the petitioner is raising wet crops in the 'C' schedule land and also to note that the existing mortem sugarcane crop and to note that there is no source of irrigation for the respondents to irrigate the petition 'C' schedule land and to file his report.
06. The petitioner also filed an application in I.A.No.107 of 2019 under Order 41 Rule 27 of CPC to permit the petitioner to adduce additional evidence by seeking for appointment of Advocate Commissioner to note down the physical features of the suit lands i.e., under ground pipelines laid from the petitioner's well and bore well to the plaint "C" schedule and that there are no other source of irrigation for the said lands and to permit him to file documents along with the petition as additional evidence.
07. The Appellate Court, having heard both the counsel and upon perusing the record, dismissed these two interlocutory applications by its Order dated 27.01.2020. Aggrieved by the same, the present Civil Revision Petitions are filed. 3
08. Heard Sri Gade Venkateswara Rao, learned counsel for the petitioner and Sri S.S. Bhatt, learned counsel for the respondents.
09. Learned counsel for the petitioner submits that the Appellate Court erroneously dismissed the petition filed by the petitioner for appointment of an Advocate Commissioner to note down the physical features of "C' schedule property ignoring the scope of Order 26 Rule 9 of CPC. He submits that though the petitioner filed a petition for appointment of an Advocate Commissioner before the trial Court, but due to technical reasons, the same is not considered, hence, it is necessitated to file this petition in this appeal to substantiate his case and to resolve controversy among the parties. Learned counsel would submit that the Appellate Court has mechanically dismissed the petition filed by the petitioner to permit him to adduce additional evidence by appointment of an Advocate Commissioner to note down the physical features of the schedule property ignoring the scope of Order 41 Rule 27 of CPC. He submits that unless the evidence under Order 41 Rule 27 (b) (i) of CPC cannot come into play if there is evidence only under Order 41 Rule 27 come into play. He submits that unless appointing Advocate Commissioner, there will be no additional evidence, and as such, first interlocutory application in I.A.No.109 of 2019 has to be allowed and then I.A.No.107 of 2019 has to be considered.
10. Learned counsel submits that I.A.No.340 of 2013 was filed before the trail Court for appointment of Advocate Commissioner during the pendency of the suit to note down the physical features of 'A and B' suit schedule properties and the present application 4 filed in appeal is to note down the physical features of "C" schedule property, and as such, the principle of res judicata does not apply. He contended that the Appellate Court committed grave mistake by dismissing these two interlocutory applications without considering the scope of Order 41 Rule 27 of CPC and Order 26 Rule 9 of CPC, and therefore, sought to allow the present Civil Revision Petitions.
11. On the other hand, learned counsel for the respondents submits that in the affidavit filed by the petitioner along with these interlocutory applications, there are no reasons mentioned for seeking appointment of Advocate Commissioner and the petitioner also did not file any documents along with the applications to adduce additional evidence. He contends that the petitioner filed similar application in I.A.No.340 of 2013 in the trial Court and it was dismissed and no appeal or revision is filed against the said dismissal order, and as such, it has become final. The filing of another application for the similar relief in the appeal is not permissible as principle of res judicata applies. Learned counsel would submit that the petitioner has to file an application under Section 105 of CPC and ought to have sought leave of the Court in such circumstances. Learned counsel also submits that the Appellate Court clearly mentioned in the impugned Order that I.A.No.107 of 2019 and I.A.No.109 of 2019 are supposed to be heard along with the main appeal. He further submits that there is no infirmity in the Order of the Appellate Court in dismissing these interlocutory applications and sought for dismissal of the present Civil Revision Petitions.
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12. I have considered the submissions of the learned counsel for the petitioner and the respondents and perused the record.
13. The short question which arise for consideration in these two Civil Revision Petitions is:
"Whether the first Appellate Court was justified in hearing and dismissing the interlocutory applications filed by the petitioner under Order 41 Rule 27 of CPC and Order 26 Rule 9 of CPC ?
14. Learned counsel for the petitioner placed reliance on the following judgments:
1) Sridhar Shetty and others v Narayana Naika1
2) Mallikarjuna Srinivasa Gupta v K. Sheshirekha2
3) Arjun Singh v. Kartar Singh3.
4) Ram Dihal Lal and another v Lakhpat Lal and others4
15. Learned counsel for the respondents placed reliance on the following judgments:
1) Karnataka Board of Wakf v Government of India and others5
2) State of Gujarat and another v. Mahendrakumar Parshottambhai Desai (dead) By L.Rs6.
3) Neelam Bhadramma v Marri Lakshmamma of A.P. High Court7.
4) M. Harinarayana @ Haribabu v Smt. P. Swaroop Rani of A.P. High Court8 1 (2005 (5) Karnataka L.S. 458 2 2006 L.S. (AP) 248.3
( 1951 (Law Suit) SC 15 (FB) 4 AIR 1932 Allahabad 270 5 (2004) 10 Supreme Court Cases 779.
6( 2006) 9 SCC 772 7 2006 (4) ALT 178 8 2008 (6) ALT 378 (DB).
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5) National Insurance Company Limited, rep. by its Branch Manager v. Syeda Najmunnissa and others of A.P. High Court9
6) Nandam Rama Rao v Battu Rama Rao of A.P. High Court10
7) K. Chengalraya Chetty (died) per L.Rs v.
Gomatheeswari of A.P. High Court11
8) Deccan Chronicles Holdings Limited, Secunderabad v Debts Recovery Tribunal, Hyderabad, and another of A.P. High Court12
16. In the decision relied by the learned counsel for the petitioner in Sridhar Shetty and others v Narayana Naika ( 1 supra), the Karnataka High Court while dealing with the scope of Order 26 Rule 9 and Order 41 Rule 27 of CPC held at para No.6 as under:
" 6. Order 26 of CPC would deal with commission. Order 26 Rule 9 would deal with commission to make local investigation. It would contemplate that wherever the Court in unsure about the factual aspect of the matter and is of the opinion that a local investigation is required to be done for the proper purpose of elucidating any matter in dispute, it may appoint a commission. Order 41 Rule 27 of CPC is in respect of powers of the Appellate Court wherein certain additional evidence is produced and at what stage and in what circumstance the said additional evidence is to be accepted. It is no doubt true that under Order 41 Rule 27 of CPC would certainly contemplate that whenever an evidence is produced in trial Court and for no juristifiable reason the same is rejected by the trial Court, the same shall be taken as additional evidence in the appellate Court and more important is the party who seeks to produce additional evidence would satisfy that the said additional evidence was not available with the party in spite of due diligence the same could not be produced in the trial Court, the same shall be accepted. Apparently Order 41 Rule 27 of CPC would come into play when the evidence is sought to be produced during the course of the proceedings at appellate stage. In the case on hand the evidence of the Commissioner has not as yet come on record. What has been done in the Appellate Court is only an application is filed for appointment of a Commissioner so as to 9 2010 (3) ALT 118 (DB).10
2014 (1) ALT 377.11
2015 (1) ALT 42.12
2015 (3) ALT 40 (DB).7
make a local inspection of the suit property and the factual aspect of the matter. When the report is filed by the Commissioner on the basis of the local inspection that would partake the character of an additional evidence which necessarily will have to be considered along with the main appeal. If the contention of Mr. Sampath Anand Shetty is to be accepted this would something like putting the cart before the horse, inasmuch as, the evidence is not there before the Court. It is only after the report is placed before the Court, it would partake the character of an additional evidence which, as stated above, will have to be considered along with the main appeal."
At para No.7, it is held that it is only after the ingredients of Order 41 Rule 27 of the Code of Civil Procedure are satisfied, the additional evidence can be taken on record.
17. The decision relied in Mallikarjuna Srinivasa Gupta v K. Sheeshirekha ( 2 supra), the High Court of Andhra Pradesh while dealing with the scope and the power conferred on High Courts under Article 227 of the Constitution of India, it was held that it is an undisputed fact that the power under Article 227 of the Constitution of India is wider than the one conferred on the High Court by Article 226 of the Constitution of India. There is no dispute with the same.
18. In Ram Dihal Law and another v Lakhpat Lal and Others( 4 supra), the Allahabad High Court held at para No.3 as under:
" 3. This appears to mean that an appellate Court has the powers of a Court of original jurisdiction subject to any conditions and limitations which are prescribed for an appellate Court. There is no condition or limitation imposed by the Code on the issue of a commission by an appellate Court other than the conditions laid down in Order 26. The section of the Code which authorizes a Court to issue a commission for local investigation is Section 75(b). I consider that under Section 107(2) and Section 75(b) an appellate Court has power to issue a commission for a local investigation. That being so, the appellate Court is not bound to record its reasons under Order 41, Rule. 27(2) and there does not appear to be any irregularity in the present case. No other ground of appeal was pressed, and accordingly I dismiss this appeal with costs including counsel's fees in this Court on the higher scale."
19. In the following decisions relied on by the learned counsel for the respondents, the Hon'ble Apex Court and High Courts observed/held as under:
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In Karnataka Board of Wakf v Government of India and others ( 5 supra) , the Hon'ble Apex Court while interpreting with the scope of Order 41 Rule 27 of CPC held as under:
"6. In the circumstances, the learned counsel for the appellant, reiterated the claim made before the High Court that they should be permitted to adduce further evidence before the court to substantiate their claim but when the matters were pending before the Trial Court and the High Court they had ample opportunity to do so. If they had to produce appropriate documents, they could have done so and also it is not clear as to the nature of the documents which they seek to produce which will tilt the matter one way or the other. The scope of Order XLI, Rule 27, CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the court to pronounce proper judgment. In this view of the matter, we do not think there is any justification for us to interfere with the orders of the High Court. However, in view of the arguments addressed by the learned counsel for the appellant, we have also gone into various aspects of the matter and have given another look at the matter and our findings are that the view taken by the High Court is justified. However, one aspect needs to be noticed. The High Court need not have stated that the first respondent is entitled to the relief even on the basis of adverse possession. We propose to examine this aspect."
20. In State of Gujarat and another v Mahendrakumar Parshottambhai Desai (6 supra), the Hon'ble Supreme Court at paragraph No.10 held as under:
"We shall first deal with the appeals preferred against the judgment and order of the High Court rejecting Civil Application Nos. 964 and 1150 of 2002 filed by the appellants herein for adducing additional evidence under Order XLI Rule 27 of the Code of Civil Procedure. The documents sought to be produced were contained in Annexure I to the applications. The applications were opposed by the respondents. It was submitted on behalf of the appellants that the applications may be treated as one under Order XLI Rule 27(1)(b) of the Code of Civil Procedure, apparently because the other provisions or the rule did not apply to the facts and circumstances of the case. The High Court noticed that a similar Civil Application being No. 4849 of 2000 had been filed earlier when this appeal had been placed for hearing before another Division Bench of the High Court, but the said application was rejected by order dated June 22, 2000. The High Court further found that Rule 27(1)(b) of Order XLI can be invoked only if the 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. In the instant case it was not as if the additional evidence was required by the Court to enable it to pronounce judgment and, therefore, additional evidence was sought to be adduced for "substantial cause" since serious prejudice would be caused to the appellants if the additional evidence was not permitted to be 9 adduced. Reliance was placed on the judgment of this Court in Municipal Corporation of Greater Bombay vs. Lala Pancham and others : AIR 1965 SC 1008 wherein this Court held that though the appellate Court has the power to allow a document to be produced and a witness to be examined under Order XLI Rule 27 CPC, the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision did not entitle the appellate court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in the case. It does not entitle the appellate court to let in fresh evidence only for purposes of pronouncement of judgment in a particular way. The High Court referred to the earlier proceedings before various authorities and came to the conclusion that though the appellants had sufficient opportunity to bring the evidence on record,, for reasons best known to it, the State did not produce the entire evidence before the trial court and it was only 8 years after the dismissal of the suit that the applications were filed for adducing additional evidence in the appeal. The High Court, therefore, dismissed the applications for adducing additional evidence".
21. In Neelam Bhadramma v Marri Lakshmamma (7 supra), the High Court of Andhra Pradesh held at paragraph No.15 as under:
" It is needless to say that the conditions specified in the above provisions are not satisfied in the present case. Strong reliance was placed on Jayaramdas and sons v. Mirza Rafatullah Baig and Ors. and State of Rajasthan v. T.N. Sahani and Ors. In the' facts and circumstances of the case, this Court is of the considered opinion that these documents cannot be permitted at the appellate stage since none of the conditions specified under Order XLI Rule 27 C.P.C., have been satisfied in the present case and accordingly, C.M.P. No. 18112/2000 is hereby dismissed".
22. In M. Harinarayna @ Haribabu v Smt P. Swaroopa Rani ( 8 supra), the High Court of Andhra Pradesh at paragraph No.26 and 27 held as under:
" 25. Under Order 41, Rule 27 CPC, a party is permitted to adduce additional evidence only if he 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 him was passed.
26. In the instant case, as rightly pointed out by the learned Counsel appearing for the appellant that the certificate was said to be issued by the District Treasury Office on 16.12.2005, whereas it was well within the knowledge of respondent that the date of execution mentioned in Ex. A.15 was not correct. Such being the situation, the respondent could have adduced the proposed additional evidence in the trial Court itself but failed to do so. There is no proper explanation from the respondent by which cause he was prevented from adducing the said evidence before the trial Court. As such, the respondent failed to establish that notwithstanding the exercise of due diligence, he could not be able to adduce the proposed additional evidence before the trial Court. Under these circumstances, the proposed additional evidence cannot be admitted in this appeal and the A.S.M.P No. 1142 of 10 2006 filed by the respondent to receive the certificates issued by the District Treasury Office as additional evidence is hereby dismissed".
23. In National Insurance Company Limited, rep. by its Branch Manager v Syeda Najmunnisa and others ( 9 supra), the High Court of Andhra Pradesh at paragraph Nos.36 and 37 held as under:
" 36 Thus the summary of the above discussion is that the Tribunal has to follow the summary procedure while dealing with the claim petitions and strict rules of evidence and pleadings is not necessary. Any amount of evidence without the basis pleading has no value in the eye of law. Therefore, first of all there should be foundation of pleading basing upon which the evidence should be adduced. Where there is no pleading, the question of permitting to adduce additional evidence on a plea not taken does not arise. It is also the settled law that a party cannot be allowed to fill up lacunas and the Court will not come to the rescue of a party who sleeps over his rights. Under Rule 27 of Order 41 of C. P. C, the specific conditions prescribed are that the parties to Appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court, However the Court may permit to adduce additional evidence in the Appellate court where in a case the Court, from whose decree the Appeal is preferred, has refused to admit the evidence which ought to have been admitted or where 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 where 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.
37 Thus it is the settled law that Rule 27 of Order 41 of C. P. C. does not confer any right to a party to produce additional evidence at the appellate stage. But if the Court, hearing the Appeal, feels that the additional evidence is necessary for the just decision of the case, it may permit to produce additional evidence. In shivajirao Nilangekar Patil V/s. Dr. Mahesh Madhav Gosavi, AIR 1987 SC 294, the Supreme Court held that:
"the basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance. Secondly, the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant for the determination of the issue."
24. In Nandam Rama Rao v Battu Rama Rao (10 supra), the High Court of Andhra Pradesh held at para No.11 and 12 as under:
" 11. A reading of the impugned order indicates that while considering the I.A.No.711 of 2009 filed under Order 41 Rule 27 of C.P.C., in paragraphs 6 to 14, the Court below had gone into the merits of the appeal also to some extent and thereafter it had considered whether the application filed by the respondent comes within the purview of Order 41 Rule 27 of C.P.C. There is nothing on record to show that the Court was considering the appeal also along with the application filed under Order 41 Rule 27 of C.P.C.
12. In T.N.Sahani and others (1 supra), the Supreme Court held that an application under Order 41 Rule 27 of C.P.C. should be decided along with the appeal and cannot be taken up independently without taking up the appeal. Prima facie, therefore, the Court below erred in considering the 11 application under Order 41 Rule 27 C.P.C. filed by the respondent in isolation without considering the same along with the appeal".
25. In K. Chengalraya Chetty (died) per L.Rs v Gomatheeswari ( 11 supra), the High Court of Andhra Pradesh at paragraph No.25 held as under:
"Courts should be cautious and must always act with great circumspection in dealing with claims for letting in additional evidence. (Municipal Corpn. of Greater Bombay v. Lala Pancham (AIR 1965 SC 1008)). The general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. The appellate court may permit additional evidence only and only if the conditions laid down in this Rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. The provision does not apply when, on the basis of the evidence on record, the appellate court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the Rule itself. (K. Venkataramiah v. A. Seetharama Reddy (AIR 1963 SC 1526) ; Lala Pancham26; Soonda Ram v. Rameshwarlal ((1975) 3 SCC 698) ;
Syed Abdul Khader v. Rami Reddy ((1979) 2 SCC 601) ; and Union of India v. Ibrahim Uddin ((2012) 8 SCC 148)). Parties to the lis are not entitled to produce additional evidence as of course or as a routine. They must satisfy the conditions stated in Order 41 Rule 27. (Basayya I.Mathad v. Rudrayya S.Mathad ((2008) 3 SCC 120".
26. In Deccan Chronicles Holdings Limited, Secunderabad v Debts Recovery Tribunal, Hyderabad and another (12 supra), a Division Bench of the High Court of Andhra Pradesh while dealing with principle of res judicata held at paragraph Nos. 23 and 24 as under:
" 23. The principle of res judicata applies, if finding given in an interlocutory order can be applied to the same subsequent proceedings. So, thereby, the parties cannot re-agitate the same once an interlocutory order or final order has become final. But, in this case, the finding of this Court in the interlocutory stage cannot be said to be a final order because it is clearly mentioned in the order that considering the prima facie view the writ petition is maintainable. Therefore, that finding cannot be said to be a final order.
24. The contention of the learned Senior Counsel appearing for the petitioner is that prima facie finding operates as res judicata. But, we are of the view that certain observations or findings made while disposing of the interlocutory application, cannot be said to be a finding or ratio laid down. If the ratio is laid down in the interlocutory order, then such a ratio can be said to operate as res judicata in subsequent proceedings. If it is a final decision, the parties are refrained from re-agitating the same point at the subsequent stage of proceedings. Therefore, under no stretch of imagination it can be said that the finding or observation given by this Court at the interlocutory stage has finally determined the rights of the parties. It is a prima facie view taken by this Court for the purpose of disposal of the Miscellaneous Petition in the Writ petition. Therefore, the said contention cannot be accepted".
27. Now, it is appropriate to examine the conditions enumerated under Order 41 Rule 27 of CPC.
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Rule 27 of Order 41 of CPC reads as follows:
"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.
28. A perusal of Order 41 Rule 27 of CPC, which cannot be invoked by a party to fill up lacunas in his case. The scope of Order 41 Rule 27 of CPC is very clear to the effect that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary, unless they have shown that in spite of due diligence, they could not produce such documents and such documents are required to enable the Court to pronounce proper judgment. Adducing additional evidence cannot be permitted as a matter of course and in only exceptional circumstances, parties can be permitted to adduce additional evidence in appeal. Those circumstances are that where the trial Court has refused to admit the evidence which ought to have been admitted or the party who seeks to adduce additional evidence in spite of exercise of due diligence was not within the knowledge of additional evidence or could not produce the additional evidence at the time of judgment and decree or when the Appellate Court requires the parties to adduce additional evidence or for any other substantial cause. The Appellate Court may allow such evidence or document to be produced or witness to be examined. The Court shall record reasons for its admission wherever additional evidence is allowed to be produced by an appellate Court. 13
29. The contentions of both parties anxiously considered in the light of the proposition of law laid down by the Hon'ble Supreme Court of India as well as various High Courts in the aforementioned decisions.
30. Though it is argued by the learned counsel for the respondents that similar application in I.A.No.340 of 2013 was filed seeking appointment of Advocate Commissioner during pendency of the suit, and as such, filing of an application for the same relief in the appeal, it is contended by the learned counsel for the respondents, the principle of res judicata applies. But, this Court is not accepting his submissions on this point due to the fact that I.A.No.340 of 2013 was filed during the pendency of the suit for appointment of Advocate Commissioner to note down the physical features of 'A and B' suit schedule property and the present I.A.No.109 of 2019 is filed in the appeal to appoint an Advocate Commissioner to note down the physical features of "C' schedule property, and as such, the principle of res judicata does not apply in this case.
31. In State of Rajasthan v T.N.Sahani and others13, the Hon'ble Supreme Court held that an application under Order 41 Rule 27 of CPC should be decided along with the appeal and cannot be taken up independently without taking of the appeal.
32. The Appellate Court ought to have considered these two interlocutory applications along with the main appeal instead of considering them independently in view of the law laid down by the Apex Court in T.N SAHANI's case at paragraph No.4, wherein it was held as under:
4. 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 13 2001 10 SCC 619 14 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.
33. The same was followed by the High Court of Andhra Pradesh in V. Ranga Reddy V C. Ramakrishna Reddy14, wherein it was held as follows:
"7. Having regard to the observation of the Apex Court referred to above, it is always expedient for the Court to examine the interim application filed under Order 41 Rule 27 CPC while hearing the main appeal in order to arrive at a right conclusion and also, if necessary, by taking into consideration the documents so sought to be received by the Court and filed under Order 41 Rule 27 CPC., and if the Court is of the satisfaction that even without taking into consideration the documents so sought to be received by the Court, a judgment in a satisfactory manner can be rendered, the interim application in that regard can also be discarded. However, it is always desirable, as held by the Supreme Court, to take into consideration the documents sought to be received along with the hearing of the appeal. Any conclusion arrived at would only amount to a premature conclusion, which may sometimes cause prejudice to the case of either party. Following the judgment referred to above, I have no option but to allow the revision. Hence, I.A. No. 37 of 2004 in AS No. 10 of 2002 is liable to be set aside and the same is, accordingly, set aside".
34. The Hon'ble High Court in G. Shashilala (Died) through LRs Vs. G. Kalawati Bai (Died) through LRs and others reported in AIR 2019 SC 2631 equivalent to 2019 (4) ALD 182, wherein it was held at paragraph Nos. 13 and 14 as under:
13. In our considered opinion, the need to remand the case to the High Court has occasioned for the reason that the High Court committed jurisdictional error while deciding the application filed by the Respondents Under Order 41 Rule 27 of the Code (428/2011) separately.
14. The question as to how the application filed Under Order 41 Rule 27 of the Code in the appeal should be decided by the Appellate Court remains no more res integra and stands decided by the three decisions of this Court in North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (Dead) by L.Rs. , MANU/SC/7481/2008 : (2008) 8 SCC 511(See paras 13-17), Shalimar Chemical Works Limited v. Surendra Oil & Dal Mills (Refineries) and Ors., MANU/SC/0645/2010 : (2010) 8 SCC 423 (See para
16) and Corporation of Madras and Anr. v. M. Parthasarathy and Ors., MANU/SC/0840/2018 : 2018 (9) SCC 445 (See paras 11-15) 14 2005 (2) ALD 629 15
35. In the present case, though the Appellate Court expressed its intention that I.A.No.107 of 2019 and I.A.Nos. 109 of 2019 to be heard along with the main appeal, but at the instance of the petitioner, these two interlocutory applications were taken up for hearing independently before taking up the main appeal. In the considered opinion of this Court, the Court below committed grave mistake in considering the application filed by the petitioner under Order 41 Rule 27 of CPC at first instance without taking it for hearing along with the main appeal.
36. For the aforementioned reasons, this Court has no option, but, to allow the present Civil Revision Petitions. Hence, the Common Order dated 27.01.2020 in I.A.No.109 of 2019 and I.A.No.107 of 2019 in A.S.No.73 of 2018 is liable to be set aside and the same is, accordingly, set aside.
37. In the result, these two Civil Revision Petitions are allowed. I.A.No.109 of 2019 and I.A.No.107 of 2019 in A.S.No.73 of 2018 are restored to its file. The lower Appellate Court is directed to take into consideration the said applications along with the appeal and record a finding as regards the necessity or otherwise of the documents. No costs.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
____________________
BATTU DEVANAND, J
Date: -12-2020
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