Order XLI Rule 28 of the CPC reads as under: Under Rule 27 (1), the parties to appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court except under the circumstances envisaged under sub- clauses (a), (aa) and (b) thereof. Under sub-rule (2) of Rule 27, whenever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reasons for its admission. Rule 28 prescribed the procedure for taking additional evidence. Under this Rule, wherever additional evidence is allowed to be produced, the appellate Court may either record such evidence by itself or direct the Court, from whose decree the appeal is preferred, or any other sub-ordinate Court to take such evidence and forward the same to it. Mode of taking additional evidence- Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court. As the lower appellate Court has committed a serious procedural illegality in remitting the case to the trial Court, the judgment and decree under appeal cannot be sustained and the same is, accordingly, set aside. The Civil Miscellaneous Appeal is allowed. The lower appellate Court is directed to decide as to whether it will itself record the evidence or direct the trial Court to record the evidence and forward the same to it. After recording of the evidence either by itself or by the trial court, the lower appellate Court shall dispose of the appeal on merits. This process shall be completed within three months from the date of receipt of this order.

The Honble Sri Justice C.V.Nagarjuna Reddy

Civil Miscellaneous Appeal No.1058 of 2014

06-02-2015

Kesava ReddyAppellant  

A.Visupaksha Reddy (died) and 7 others  Respondents  

Counsel for the Appellant: Mr.M.Radha Krishna

Counsel for respondent Nos.2 to 6: Mr.K.Sita Ram

<GIST:

>HEAD NOTE:  

? Cases cited:

2010 (2) ALD 86 (SC)

The Honble Sri Justice C.V.Nagarjuna Reddy

Civil Miscellaneous Appeal No.1058 of 2014

Dated 06.02.2015

The Court made the following:

Judgment:
        This Civil Miscellaneous Appeal arises out of the judgment
and decree, dated 25-08-2014, in AS.No.60 of 2012, on the file of
the Court of the learned II Additional District Judge, Kurnool at
Adoni, whereby he has remanded the case to the Court of the
Junior Civil Judge, Aluru, for considering the additional
documentary evidence filed by respondent Nos.2 to 6, who are
the appellants before it, and to answer the issues afresh.
        I have heard Mr.M.Radha Krishna, learned Counsel for the
appellant, and Mr.K.Sitaram, learned Counsel for respondent
Nos.2 to 6.
        One Virupaksha Reddy filed OS.No.170 of 2006 for
declaration of his title to the plaint schedule property and also for
permanent injunction restraining the petitioner and respondent
Nos.7 and 8 herein from interfering with his peaceful possession
and enjoyment of the plaint schedule property.  After filing the
suit, the sole plaintiff died.   Respondent Nos.2 to 6, who have
come on record as his legal representatives, have pursued the suit.
By judgment and decree, dated 23-04-2012, the trial Court has
dismissed the suit.  Feeling aggrieved by the said judgment and
decree, respondent Nos.2 to 6 have filed AS.No.60 of 2012.   In
the appeal, respondent Nos.2 to 6 have filed certain additional
documents viz., certified copy of registered sale deed bearing
document No.1826/69, certified copy of the judgment and
decree in AS.No.17 of 2005, certified copy of 1-B register,
statement of sub-division and the Adangal for the fasli 1421.  The
lower appellate Court marked these documents as Exs.A.6 to
A.10 respectively.  It has also framed three points and after
discussing those points, it has felt that in the absence of Ex.A.6,
the lower Court was justified in rejecting the relief of declaration
of title and that the said document cannot be examined by the
appellate Court without giving a fair opportunity to both parties
to adduce evidence in respect thereof.  It has further observed
that if the appeal is allowed based on Ex.A.6, it will deny the
defendants the opportunity to question the said document.  The
lower appellate Court has, therefore, remitted the matter to the
trial Court for considering the additional documentary evidence
filed by the appellants before him and deciding the suit afresh
after giving a fair opportunity to both the parties.  Feeling
aggrieved by the said judgment, the first defendant has filed this
Civil Miscellaneous Appeal.
        The learned Counsel for the appellant has submitted that
the lower appellate Court has committed a grave procedural
illegality in remanding the case for fresh disposal by the trial
Court.  In support of his submission, he has placed reliance on
Rule 28 of Order XLI of the Code of Civil Procedure, 1908
(CPC) and also on the judgment of the Supreme Court in
H.V.Vedevyasachar vs. Shivashankara and another .
        The learned Counsel for respondent Nos.2 to 6 sought to
support the procedure followed by the lower appellate Court.
        I have carefully considered the respective submissions of
the learned Counsel for the parties.
        Order XLI CPC deals with Appeals from original decrees.
Under this Order, the appellate Court is conferred with the power
to remand the appeals in three different situations.  First, under
Rule 23, where an appeal is preferred against a decree, based
upon a preliminary point, and in case that decree is reversed in
appeal, the appellate Court may, by order, remand the case for
disposal on merits.  Second, under Rule 23-A, where an appeal is
preferred against a decree, based on issues other than the
preliminary point, and in case that decree is reversed in appeal
and a re-trial is considered necessary, the appellate Court will
have the same powers as it has under Rule 23.  Third, under Rule
25 also, the appellate Court may remand the case after framing
certain additional issues.
        However, where additional evidence is produced for the
first time before the appellate Court, as in the instant case, Rules
27 and 28 of Order XLI CPC govern the situation.  Under Rule
27 (1), the parties to appeal shall not be entitled to produce
additional evidence, whether oral or documentary, in the appellate
Court except under the circumstances envisaged under sub-
clauses (a), (aa) and (b) thereof.  Under sub-rule (2) of Rule 27,
whenever additional evidence is allowed to be produced by an
appellate Court, the Court shall record the reasons for its
admission.  Rule 28 prescribed the procedure for taking
additional evidence.  Under this Rule, wherever additional
evidence is allowed to be produced, the appellate Court may
either record such evidence by itself or direct the Court, from
whose decree the appeal is preferred, or any other sub-ordinate
Court to take such evidence and forward the same to it.
        In Para 4 of the judgment of the lower appellate Court, it
has observed that during the course of the arguments, the
Counsel for the appellants/plaintiffs filed the certified copies of
Sale Deed No.1826/69, judgment and decree in AS.No.17/05, 1-
B register, statement of sub-division and the adangal for the fasli
1421 and that they were marked as Exs.A.6 to A.10.
        The learned Counsel for the parties are unable to state as to
whether any order, recording the reasons for admitting those
documents, was passed in terms of sub-Rule (2) of Rule 27 by the
lower appellate Court.  In the face of the unequivocal language in
sub-rule (2) of Rule 27, no additional evidence can be allowed and
admitted unless the Court records reasons therefor.
        Be that as it may, even if the lower appellate Court has felt
that the additional evidence produced by respondent Nos.2 to 6
is relevant for the purpose of proper and effectual adjudication of
the appeal, it is left with two options under Rule 28.  Either it has
to record the evidence by itself or direct the Court, from whose
decree the appeal is preferred, or any other subordinate Court to
take such evidence and forward the same to it.  It, therefore,
necessarily means that in either case, the lower appellate Court
itself has to dispose of the appeal on merits after recording of
further evidence.  It has no jurisdiction to remit the case to the
trial Court for adjudication of the suit afresh on the ground of
taking on record the additional evidence.  This position is well
crystallized by the judgment of the Supreme Court in
H.V.Vedavyasachar (cited supra).  Dealing with a similar
situation, the Supreme Court held as under:
        9. However, so far as the second contention
raised by the learned Counsel for the appellant is
concerned, in our opinion, the same has substance.
When an application for adducing additional
evidence is allowed, the appellate Court has two
options open to it.  It may record the evidence itself
or it may direct the trial Court to do so.  Order XLI
Rule 28 of the CPC reads as under:
28. Mode of taking additional evidence-
Wherever additional evidence is allowed to be
produced, the Appellate Court may either take
such evidence, or direct the Court from whose
decree the appeal is preferred, or any other
subordinate Court, to take such evidence and
to send it when taken to the Appellate Court.
        10. For the aforementioned purpose, in our
considered opinion, the High Court could not have
directed the trial Court to dispose of the suit after
taking evidence.  Such an order of remand could be
only in terms of Order XLI Rule 23, Order XLI
Rule 23A or Order XLI Rule 25 of the Code.  None
of the said provisions have any application in the
instant case.
        11. This Court in Shanti Devi and others v.
Daropti Devi and others (2006) 13 SCC 775, has
held as under:
But the same by itself could not be a ground
for remitting the entire suit to the learned trial
Judge upon setting aside the decree of the
learned trial Court.  The power of remand
vests in the appellate Court either in terms of
Order 41 Rules 23 and 23A or Order 41 Rule
25 of the Code of Civil Procedure.  Issue 4
was held to have been wrongly framed.  Onus
of proof was also wrongly placed and only in
that view of the matter, the High Court
thought it fit to remit it to the learned trial
Judge to determine a question of fact, which
according to it was essential upon reframing
the issue.

        As the lower appellate Court has committed a serious
procedural illegality in remitting the case to the trial Court, the
judgment and decree under appeal cannot be sustained and the
same is, accordingly, set aside.
        The Civil Miscellaneous Appeal is allowed. The lower
appellate Court is directed to decide as to whether it will itself
record the evidence or direct the trial Court to record the
evidence and forward the same to it.   After recording of the
evidence either by itself or by the trial court, the lower appellate
Court shall dispose of the appeal on merits.   This process shall
be completed within three months from the date of receipt of this
order.
        As a sequel to disposal of the Civil Miscellaneous Appeal,
CMAMP.No.1764 of 2014, filed by the appellant for interim
relief, is disposed of as infructuous.
_____________________  
(C.V.Nagarjuna Reddy, J)
Dt: 6th February, 2015

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