Order 41 Rule 27 C.P.C - ADDITIONAL EVIDENCE AT APPELLANT STAGE- NOT MAINTIANBLE AS OF RIGHT= a bald statement has been made stating that the son of the respondent, who allegedly scribed the endorsements on the suit promissory notes, went to Saudi Arabia to take up employment with the Government of Saudi Arabia; he could not get any leave from his employer to come to India to give evidence in the suit on behalf of the respondent/ plaintiff; that in spite of exercise of diligence, the respondent could not examine him at the time of trial of the suit. No material is placed before the Court below to come to the said conclusion. = in the absence of satisfactory explanation as to why the evidence in question could not be produced before the trial Court, the power under Order 41 Rule 27 of C.P.C. cannot be exercised. ; it is not a matter of right for a party to walk into the Appellate Court and seek grant of permission to produce additional evidence and that an application for receiving additional evidence at the appeal stage would only be allowed, if conditions laid down in Rule 27 of Order 41 of C.P.C., have been satisfied. It was further held that before a party was allowed to produce additional evidence pleading under Order 41 Rule 27(1)(aa) of C.P.C., he has to establish that such evidence was not within his knowledge or could not, after exercise of due diligence, be produced by him at the time when the decree appealed against was passed. In the present case, the Court below has not adhered to the above principles and allowed the I.A.No.711 of 2009 erroneously. Therefore, the Civil Revision Petition is allowed and the impugned order dt.18.08.2010 in I.A.No.711 of 2009 in A.S.No.14 of 2009 of the Additional Senior Civil Judge, Tenali, is set aside and the said I.A. is dismissed. No costs.

REPORTED/PUBLISHED INhttp://judis.nic.in/judis_andhra/filename=9748

THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO          

CIVIL REVISION PETITION No. 4280 OF 2010    
       
04.04.2013

Nandam Rama Rao, S/o.Dasaradha Ramaiah    

Battu Rama Rao, S/o.late Yallari

Counsel for the petitioner:Sri V.S.R.Anjaneyulu

Counsel for respondent: Ms. Manchikalapati Renuka

<Gist:

>Head Note:

?Cases referred:
1) (2001) 10 SCC 619
2) AIR 1989 SC 1416
3) 1998(4) ALT 81

ORDER:

        This Revision is filed under Article 227 of the Constitution of India
challenging the Order dated 18.08.2010 in I.A.No.711 of 2009 in A.S.No.14 of
2009 on the file of the Additional Senior Civil Judge, Tenali.
        The petitioner is the defendant in a suit filed by the respondent against
him for recovery of money on the basis of three promissory notes. The suit was
dismissed and challenging the same, the respondent/plaintiff filed A.S.No.14 of
2009 on the file of the Additional Senior Civil Judge, Tenali.
In the said appeal, the plaintiff filed I.A.No.711 of 2009 under Order 41 Rule
27 of C.P.C. r/w Section 151 of C.P.C. seeking permission of the Court to permit
him to adduce additional evidence by examining his son by name B.Lokeswara Rao
as an additional witness on his behalf.
In the affidavit filed in support of the said application, the plaintiff
contended that his son is the scribe of the last payment endorsement Ex.A.9
dt.29.01.2004 on Ex.A.1 suit promissory note, Ex.A.13 last payment endorsement
on Ex.A.2 suit promissory note and Ex.A.17 last payment endorsement on the suit
promissory note Ex.A.3; he wrote the said endorsements on 29.01.2004; in
February, 2004, he went to Saudi Arabia to work as a Senior Planner in the
Production Department of Government of Saudi Arabia; he could not examine him as
a witness on his side as he was far away in Saudi Arabia and could not get any
leave from his employer to come to India to give evidence in the said suit on
his behalf; in spite of exercise of diligence, he could not examine his son as a
witness at the time of trial of the suit; and therefore it should be permitted
to examine him in the appeal as his witness by way of additional evidence under
Order 41 Rule 27 of the C.P.C.
        The petitioner/defendant filed a counter denying the contentions of the
respondent/plaintiff/appellant and contended that the said application itself is
not maintainable, as it does not fulfill the conditions set out in Order 41 Rule
27 of C.P.C.
        By order dt.18.08.2010, the said I.A.No.711 of 2009 in A.S.No.14 of 2009
was allowed by the Additional Senior Civil Judge, Tenali.  Challenging the same,
this Revision has been filed by the petitioner/defendant/respondent in A.S.No.14
of 2009.
        Heard Sri V.S.R.Anjaneyulu, learned counsel for the petitioner and Smt.
M.Renuka, learned counsel for the respondent.
        The learned counsel for the petitioner contended that an application for
additional evidence should be decided along with the appeal; in the present
case, even though the appeal was not taken up for final hearing, the learned
Additional Senior Civil Judge, Tenali had taken up I.A.No.711 of 2009 filed by
the respondent under Order 41 Rule 27 of C.P.C; paragraphs 6 to 14 of the
impugned order indicate that the said Court was also considering the merits of
the appeal while considering the application I.A.No.711 of 2009 even though the
appeal itself was not taken up for hearing; this is not permissible as held by
the Supreme Court in State of Rajasthan  v. T.N.Sahani and others1; in any
event, the Court below should not have allowed the said I.A.No.711 of 2009 as
the conditions set out in Order 41 Rule 27 of C.P.C. have not been satisfied; no
material is placed on record by the respondent to show that his son is employed
in Saudi Arabia at the relevant time and could not attend to give evidence
before the trial court on behalf of the respondent; the passport or copies
thereof have not been filed by the respondent to prima facie show that the son
of the respondent had not visited India at all during the trial of the suit; so
the order of the Court below is erroneous and unsustainable.
        On the other hand, the learned counsel for the respondent contended that
the Court had satisfied itself that the evidence of the son of the respondent is
essential to prove that the endorsements were made on 29.01.2004 and not on
29.01.2003; although initially by mistake, the scribe had mentioned the year
2003, it was corrected as '2004' at the time of scribing the endorsements itself
with the consent of the petitioner/defendant; the said corrections therefore
would not make the instruments void u/s.87 of the Negotiable Instruments Act,
1881; the Court was satisfied that the respondent could not examine his son in
the trial court as he was employed in Saudi Arabia and could not secure leave to
come to India at that time; even otherwise, the Court was satisfied that the
testimony of the son of the respondent was necessary to enable the Court to
decide the issue on material alteration and pronounce effective judgment; that
the respondent had satisfied the Court that the application should be ordered as
the respondent's case comes within Order 41 Rule 27(1)(aa) and (b) of the C.P.C;
therefore, the order passed by the Additional Senior Civil Judge, Tenali
allowing I.A.No.711 of 2009 does not warrant any interference by this Court in
exercise of its power under Order 41 Rule 27 of C.P.C.
        I have considered the submissions of the counsel for the petitioner and
the respondent.
        A reading of the impugned order indicates that while considering the
I.A.No.711 of 2009 filed under Order 41 Rule 27 of C.P.C., in paragraphs 6 to
14, the Court below had gone into the merits of the appeal also to some extent
and thereafter it had considered whether the application filed by the respondent
comes within the purview of Order 41 Rule 27 of C.P.C.  There is nothing on
record to show that the Court was considering the appeal also along with the
application filed under Order 41 Rule 27 of C.P.C.
        In T.N.Sahani and others (1 supra), the Supreme Court held that an
application under Order 41 Rule 27 of C.P.C. should be decided along with the
appeal and cannot be taken up independently without taking up the appeal.  Prima
facie, therefore, the Court below erred in considering the application under
Order 41 Rule 27 C.P.C. filed by the respondent in isolation without considering
the same along with the appeal.
        Apart from this, in the affidavit filed in support of the application
filed by the respondent under
Order 41 Rule 27 of C.P.C., 
a bald statement has
been made stating that the son of the respondent, who allegedly scribed the
endorsements on the suit promissory notes, went to Saudi Arabia to take up
employment with the Government of Saudi Arabia;
 he could not get any leave from
his employer to come to India to give evidence in the suit on behalf of the
respondent/ plaintiff; that in spite of exercise of diligence, the respondent
could not examine him at the time of trial of the suit.  
No material is placed before the Court below to come to the said conclusion.  
The certified copy of
the passport of the son of the respondent was not placed before the Court to
satisfy itself that he did not come to India from February, 2004 till 2009 for
five years; even the affidavit of the son of the respondent placing this fact
before the Court was not filed.  
In the absence of any material before it, which
would show that the son of the respondent was employed in Saudi Arabia and had 
not been able to secure leave to come to India to give evidence in the suit on
behalf of the respondent for a period of five years, the Court below erred in
allowing I.A.No.711 of 2009 filed under Order 41 Rule 27 of C.P.C. by the
respondent.  
In Roop Chand  v. Gopi Chand2,
it was held that in the absence of
satisfactory explanation as to why the evidence in question could not be
produced before the trial Court, the power under Order 41 Rule 27 of C.P.C.
cannot be exercised.  
Similar view was also expressed in
Jammala Ramulu and  others  v. Jammala Rajaiah and others3.
In this case,
it was held that it is
not a matter of right for a party to walk into the Appellate Court and seek
grant of permission to produce additional evidence and that an application for
receiving additional evidence at the appeal stage would only be allowed, if
conditions laid down in Rule 27 of Order 41 of C.P.C., have been satisfied.  It
was further held that before a party was allowed to produce additional evidence
pleading under Order 41 Rule 27(1)(aa) of C.P.C., he has to establish that such
evidence was not within his knowledge or could not, after exercise of due
diligence, be produced by him at the time when the decree appealed against was
passed. 
        In the present case, the Court below has not adhered to the above
principles and allowed the I.A.No.711 of 2009 erroneously.
        Therefore, the Civil Revision Petition is allowed and the impugned order
dt.18.08.2010 in I.A.No.711 of 2009 in A.S.No.14 of 2009 of the Additional
Senior Civil Judge, Tenali, is set aside and the said I.A. is dismissed.  No
costs.
        The miscellaneous petitions, if any pending in this Revision, shall stand
closed.
__________________________________    
JUSTICE M.S.RAMACHANDRA RAO        
Date: 04-04.2013