Municipal Committee vs Shanti Devi and Others

M.M. Kumar, J.

This revision petition filed u/s 115 of the Code of Civil Procedure, 1908 (for brevity the Code) is directed against the order dated 21.7.2000

passed by the Addl. District Judge, Sirsa allowing the application of the appellant-respondents filed under Order 41 Rule 27 read with Section 151

of the Code for adducing additional evidence.

The appellant respondent has filed Civil Suit No. 1274-C of 1990 which was dismissed by the trial Court vide judgment and decree dated

30.4,1998. Against the aforementioned judgment and decree the appellant-respondent has preferred an appeal being C.A. No. 230 of 1998.

During the pendency of the appeal before the Addl. District Judge an application under Order 41 Rule 27 read with Section 151 of the Code was

filed for adducing additional evidence. The application was opposed by the petitioner by taking various grounds. The principal reason given by the

Addl. District Judge for allowing the application is hat the additional evidence can be permitted by the court at any stage of the suit and the

documents sought to be produced are the revenue record which were prepared during the discharge of official duties. He has further opined that

there was no possibility of fabricating those documents, Another reason which has weighed with the Addl. District Judge for allowing the

application is that the appellant was not aware of all these documents when he closed his evidence before the trial Court and the petitioner can be

compensated with costs,

Having heard the learned counsel for the parties, I am of the considered opinion that the order passed by the Addl. District Judge suffers from

serious illegality in as much as the application under Order 41 Rule 27 of the Code is required to be decided along with the appeal. On the

interpretation of Order 41 Rule 27(c) of the Code it appears to be well settled that the appellate Court should decide the application at the stage of

deciding the appeal because it is only at that stage that the necessity of referring to some additional facts on the basis of the additional evidence can

be appreciated. This view is supported by a Judgment of the Supreme Court in the case of State of Rajasthan v. T.N. Sahani (2001)127 P.L.R.

294 (S.C.). The observations of the Supreme Court interpreting the provisions of Order 41 Rule 27 of the Code reads as under:

It may be pointed out that this Court, as long back as in 1963 in K. Venkataramiah Vs. A. Seetharama Reddy and Others, , pointed out the

scope of unmended 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 record as it was, and so, it could not require additional evidence 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 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 the documents which are

sought to be filed as additional evidence, need to 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(b) should have been decided alongwith the appeal. Had the Court found the document 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...

When the ratio of the judgment in the case of T.N. Shani (supra) is applied to the facts of the present case, it is evident that the Addl. District

Judge has decided the application without deciding the appeal and therefore the order cannot be sustained on this short ground alone.

For the reasons recorded above, this petition is allowed. The Addl. Distt. Judge is directed to decide the application afresh alongwith the appeal

if such a necessity is felt by keeping in mind the observations made by the Supreme Court in T.N. Sahani''s case (supra). The parties through their

counsel are directed to appear before the Addl. Distt. Judge on 7.10.2002.