Jagadeesan vs T. Kriupakaran, Kalaiarasan, Jayakumar and Dhyalan

Honourable Mr. Justice R.S. Ramanathan

The appellant in A.S.No. 21 of 2007 on the file of the Principal District Court, Vellore is the revision petitioner in these revisions.

The appellant filed I.A.No. 30 of 2007 in A.S.No. 21 of 2007 under Order 41 Rule 27 of CPC., to receive certain documents as additional

evidence and also filed I.A.No. 32 of 2007 under Order 6 Rule 17 of CPC and also filed I.A.No. 45 of 2007 under Order 41 Rule 27 of CPC.,

to adduce the additional evidence.

The learned appellate Judge dismissed I.A.Nos.30 of 2007 and 45 of 2007 by passing a reasoned order and dismissed I.A.No. 32 of 2007

stating that having regard to the dismissal of other applications, the amendment application is also dismissed. Against the same, these revisions are

filed.

The learned counsel for the revision petitioner submitted that the lower appellate Court without properly appreciating the provision of Order 41

Rule 27 of CPC., and the nature of documents adduced by the revision petitioner as additional evidence and reasons stated in the affidavit for non-

production of those documents during trial erred in dismissing the applications.

The learned counsel for the respondents submitted that the petitions filed by the revision petitioner under Order 41 Rule 27 of CPC., is not at all

maintainable and the revision petitioner has not satisfied the conditions laid down under Order 41 Rule 27 of CPC., and hence the order of the

lower appellate Court is perfectly valid and also relied upon the Judgement reported in S. Rajagopal Vs. C.M. Armugam and Others, and AIR

2001 SC 134 (Mahavir Sing and others Vs. Naresh Chandra and another).

In my opinion, the lower appellate Court has committed an error in dismissing of I.A.Nos.30 and 45 of 2007 filed under Order 41 Rule 27 of

CPC., independently without deciding the appeal on merits. It has been laid down by our High Court in the Judgements reported in 1994 (2) LW

376 Thamburaja and Seetharaman Vs. Kanakasabai Padayachi, M.Shanmughasundaram Vs. N.T.P. Subburaya Chettiar, that the lower appellate

Court shall consider the application under Order 41 Rule 27 of CPC., along with the appeal and that application cannot be tried separately without

hearing the appeal on merits. In this regard, the Judgement of the Hon''ble Supreme Court reported in Gurdev Singh and others Vs. Mehnga Ram

and another, is relevant wherein the Hon''ble Supreme Court has held as follows:

The grievance of the appellants before us is that in an appeal filed by them before the learned Additional District Judge, Ferozepur, in an

application under Order XLI, Rule 27(b), CPC (CPC) the learned Additional District Judge at the final eharing of the appeal wrongly felt that

additional evidence was required to produce as requested by the appellants by way of examination of a heandwriting expert. The High Court in the

impugned order exercising jurisdiction u/s 115 C.P.C., took the view that the order of the appellate Court could not be sustained. In our view the

approach of the High Court in revision at that interim stage when the appeal was pending for final hearing before the learned Additional District

Judge was not justified and the High Court should not have interfered with the order which was within the jurisdiction of the Appellate Court. The

reason is obvious. The Appellate Court hearing the matter finally could exercise jurisdiction one way or the other under Order XLI, Rule 27

specially clause (b). If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if

an occasion arises to carry the matter in Second Appeal, after an appellate decree is passed. But at this interim stage, the High Court should not

have felt itself convinced that the order was without jurisdiction. Only on this short question, without expressing any opinion on the merits of the

controversy involved and on the legality of the contentions advanced by both the learned Counsel for the parties regarding additional evidence, we

allow this appeal, set aside the order of the High Court. In the result, the Additional District Judge, Ferozepur shall now decide the appeal on its

own merits. We make it clear that the order of the learned Additional District Judge, Ferozepur dated 12.12.1995 shall now be complied with,

subject to the liberty reserved to the respondent as aforesaid.

Therefore, the lower appellate Court has commiteed a serious error in dismissing the applications filed under Order 41 Rule 27 of C.P.C.,

independently before hearing the appeal. Hence, the orders of the lower appellate Court are set aside and the lower appellate Court is directed to

consider and pass orders in I.A.Nos.30 and 45 of 2007 on merits along with the appeal and the lower appellate Court is also directed to consider

and pass order in I.A.No. 32 of 2007 on merits along with the appeal.

With the above direction, the Civil Reivion Petitions are allowed. No costs. Consequently, the connected Miscellaneous petition is closed.