Andhra HC (Pre-Telangana)
Myakla Konda Reddy vs Myakla Keshava Reddy on 4 October, 2001
Equivalent citations: 2002(1)ALT343
ORDER P.S. Narayana, J.
1. The Civil Revision Petition is directed as against an order made by the Senior Civil Judge at Nagarkurnool in I.A. No. 198/2000 in A.S. No. 7/2000 dated 31-7-2000. The Revision Petitioner is the respondent in the said application and also respondent in the appeal. The respondent in the Civil Revision Petition filed the application I.A. No. 198/2000 in A.S. No. 7/2000 on the file of Senior Civil Judge, Nagarkurnool under Order 41 Rule 27 C.P.C. to permit him to adduce additional evidence before the Court by examining one M. Kondareddy s/o. Chandraiah and to get the documents, namely, registered gift deed dated 949/2000 dated 29-4-2000, ryotwari passbook and title deeds, to be marked through him. It was stated that the petitioner herein filed a suit O.S. No. 68/88 for declaration of title and injunction contending that he had acquired the same through a will alleged to have been executed by his late father and the respondent had resisted the suit denying the same and pleading that the disputed property is ancestral property which fell to his share during partition with his elder brother and his father never had executed any will and hence he made a counter claim for declaration of title and for injunction for the selfsame property. It was also stated that the Revision Petitioner had withdrawn his suit and the counter claim was proceeded with and his elder brother by name M. Kondareddy filed affidavit in I.A. No. 295/88 in O.S. No. 68/88 to the effect that the appeal schedule property had fallen to his share and during the tendency of the counter claim certain disputes arose between him and his elder brother and hence he was constrained to file a suit against his elder brother and others in O.S. No. 29/95 on the file of Junior Civil Judge, Nagarkunrool and ultimately the same ended in compromise. In view of the said circumstances, his elder brother did not cooperate with him in the present suit and though he had requested him he did not come forward for giving evidence before the court below and hence he could not be examined. Further the revenue authorities issued ryotwari passbook and title deeds relating to the schedule property in his favour and in favour of his elder brother showing equal extent after he had given evidence before the court below as DW-1 and the matter was ripe for arguments and hence he could not produce the said documents into the court. The court below had dismissed his counter claim on the sole ground that he had not proved the partition with his elder brother and after coming to know the result of the matter, his elder brother came to him and expressed his readiness to depose in his favour and further expressed to execute a relinquishment deed in his favour and accordingly after filing the appeal his brother had filed his affidavit in I.A. No. 104/2000 in A.S. No. 7/2000 and he got drafted a relinquishment deed also in his favour for the schedule property to the extent of his share as shown in the ryotwari title deed, but the same was not registered by the Sub-Registrar, Nagarkurnool on the ground that he cannot execute a relinquishment deed and under such circumstances, his elder brother executed a registered gift deed in his favour bearing No. 949/2000 dated 29-4-2000 to the effect of his share shown in the ryotwari title deed and for the said reasons in an application specified supra filed under Order 41 Rule 27 C.P.C. it was prayed to permit him to adduce additional evidence before the Court by examining M. Kondareddy s/o. Chandraiah and get the documents namely, the registered gift deed dated 29-4-2000, ryotwari pass book and title deeds, marked through him and pass such other suitable orders. The Revision Petitioner as respondent in the application filed a detailed counter affidavit denying all the allegations and also specifically stating that the conditions specified in Order 41 Rule 27 C.P.C. are mandatory and none of the conditions had been satisfied and hence the application is liable to be dismissed. However, the court below had allowed the said application and aggrieved by the same, the present Revision is filed.
2. Sri Mahipathi Rao, the learned counsel representing the Revision Petitioner had contended that though the gift deed may be a subsequent event, as far as the ryotwari pass book and title deeds are concerned, they were available with the respondent even at the time of the tendency of the suit and the mere fact that his brother was not inclined to depose in his favour cannot be a ground to permit him to examine such a party to fill up the lacunae at the appellate stage. The learned counsel also had contended that the decisions relied upon by the court below i.e., K.P. SEKHAR BABU AND OTHERS Vs. T.DEVARAJULU AND OTHERS, (DB) and GOTTIPATI NARASIMHULU NAIDU Vs. DEVINENI GANGI NAIDU AND OTHERS, 2000(2) A.L.T. 591, are not relevant for the purpose of deciding the present application. The learned counsel also had drawn my attention that there is no factual foundation and also there is no pleading for the purpose of permitting the respondent to rely upon these documents or to permit him to let in oral evidence, if any, at the appellate stage. The learned counsel had placed reliance on CHOTELAL Vs. BHOLARAM AGARWAL AND OTHERS, 1993 ALT Supplement (1) 192, JAMMALA RAMULU Vs. JAMMALA RAJAIAH, AIR 1998 A.P. 394, M/s. SONA OPTICS Vs. SHYAM SUNDERBHARGAVA AND OTHERS, and ROOP CHAND Vs. GOPI CHAND, .
3. Sri Narasimha Sarma, the learned counsel for the respondent had drawn my attention to paragraph-4 of the impugned order and had contended that the gift deed is dated 29-4-2000, which is subsequent to the date of decree in O.S. No. 68/88 on the file of Junior Civil Judge, Nagarkurnool and further in view of the changed circumstances the court below is justified in allowing the application for reception of additional evidence. The learned counsel also had pointed out paragraph-3 of the affidavit wherein it was specifically stated that the revenue authorities issued ryotwari passbook and title deed to the appeal schedule property in his favour and in favour of his elder brother showing equal extent after he gave evidence before the lower court as Dw-1 and when the matter was ripe for arguments. Thus, the learned counsel had contended that the court below after appreciating all the facts and circumstances and after satisfying that the provisions of Order 41 Rule 27 C.P.C. are satisfied, had allowed the said application and hence the Revisional Court need not interfere with such an order made by the court below which is perfectly in accordance with law.
4. Heard both the counsel. Order 41 Rule 27 C.P.C. dealing with production of additional evidence in appellate Court reads as follows:-
(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 bonafide requirement 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.
5. The only subsequent event pointed out by the respondent is the registered gift deed executed by his brother dated 29-4-2000. As far as the ryotwari passbook and also the title deed are concerned, the respondent had taken a stand that they were available, but for certain reasons they could not be filed before the Court of first instance. In the decision referred (2) supra it was observed that when the plaintiffs application for adducing additional evidence was rejected by the lower appellate Court, in the facts and circumstances, the Court felt that the suit has to be remanded to the trial Court for disposal in accordance with law while dealing with a Second Appeal. In the decision referred (1) supra when certain parties who are the purchasers had believed their vendor and had not contested the suit since the sale deeds have to be proved in support of their case, in peculiar facts and circumstances the matter was remanded to the lower court for fresh trial and disposal. In the decision referred (4) supra, it was held that the production of additional evidence at appellate stage is not permissible when the party failed to establish that the evidence was not within his knowledge or could not be produced after exercising all due diligence. In the decision referred (6) supra the Apex Court while dealing with the admission of additional evidence in an appeal by Special Leave held that when there was no satisfactory explanation for failure to produce them in lower courts and High Court, permission to file such documents cannot be granted. In the decision referred (5) supra it was held that the powers of the appellate Court to take additional evidence are regulated by Order 41 Rule 27 of the Code of Civil Procedure and the appellate Court can direct the evidence to be taken on record when (1) the trial court has improperly rejected to record the evidence which the party was prepared to adduce, (2) the party seeking to adduce 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 and (3) 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. In the decision referred (2) supra it was held that the appellate court cannot receive a document filed in trial court, but not marked, since it was a document which was not within the knowledge of the plaintiff.
6. Thus, it is clear that for the purpose of receiving additional evidence, the appellate Court has to act in conformity with the provisions of Order 41 Rule 27 C.P.C. In the present case, except the registered gift deed dated 29-4-2000 the other documents now sought to be relied upon by the respondent were within his knowledge and were available during the tendency of the suit itself, whatever the stage of the suit might have been at the relevant time. But he was not diligent in taking steps to see that those documents were filed into court. It is also pertinent to note that the explanation given by him that his brother could not be examined at the proper time in view of certain differences, may not be of much consequence and on that ground Court cannot permit the examination of a witness at the appellate stage. However, as far as the gift deed is concerned, since it is the subsequent event, though there is no pleading or factual foundation, it is a matter to be considered by the appellate Court while deciding the appeal, and since it is a registered document, the reception of gift deed by the court below as additional evidence cannot be said to be illegal and for that limited purpose even the respondent may examine his brother to prove the same. As far as the other documents are concerned, they cannot be permitted to be received as additional evidence at the appellate stage for the reasons recorded above.
7. Hence, the Civil Revision Petition is allowed partly to the extent indicated above, and in the facts and circumstances, each party to bear their own costs.