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Judgment
Jawad Rahim, J.—Plaintiff''s appeal against the order of remand in R.A. 22/09 on the file of District Judge, Mysore. The appeal has come up for admission after notice to the respondents.
Heard. Appeal is admitted and taken up for final disposal by consent.
The contextual facts to which reference needs to be made are:
a) N.C. Venkatesh and N.C. Narasimha filed O.S. 81/06 against Gowramma and three others seeking partition of the properties described in the schedule and for allotting and allocating to them their legitimate half share and also mesne profits.
b) Defendants entered contest and resisted the suit. But after a full-fledged enquiry, the suit was decreed directing division of properties for assignment and allocating half share in item nos. 1 to 3, 6 and 7 of the schedule properties to the plaintiff and the remainder to the defendants.
c) Assailing it, defendants were in R.A. 22/09. Learned appellate judge noticed at the stage of hearing that the plaintiff and defendants had both filed applications under Order XLI Rule 27, C.P.C. to produce certain documents. Noticing such request was made by both sides, learned appellate judge felt it is better to dispose of the applications without hearing on merit, and allowed the appeal, setting aside the judgment of the trial court, directing it to receive additional evidence.
d) That is questioned in this appeal.
Sri K. Sridhar is justified in pointing out that the learned appellate judge has failed to exercise jurisdiction conferred on him by Rule 25 of Order XLI, C.P.C. requiring him to re-appraise the evidence on record and take a final decision. He is also right in pointing out that grant of permission to lead additional evidence under Rule 27 is circumscribed with certain limitations. One such, the court must be satisfied that additional evidence is required, and secondly it should be satisfied that despite due diligence and care, the applicants could not procure or produce such evidence earlier.
On a perusal of the judgment impugned, it is apparent such aspects have not been considered consequent to which a truncated order has been passed, setting aside the order of the trial court and remanding it for de novo consideration after giving an opportunity to both sides. Without hearing the appeal on merit, merely setting aside the judgment of the trial court and allowing the application is impermissible. Accordingly, the judgment in appeal has to be set aside. In the result, the appeal is allowed. The impugned judgment in R.A. 22/09 is set aside and the appeal is remanded to the appellate court with a direction to hear the appeal on merit, and if he finds that for deciding the issues finally, additional evidence would be necessary and if parties (applicants) satisfy the court than requirement of Rule 27 is made out, pass appropriate orders in accordance with law on merit. On receipt of the case papers, learned appellate judge shall expedite disposal of the appeal.