Order XLI Rule 27 (1) (aa) and Section 151 of CPC read with Section 45 of the Evidence Act, 1872 to send the disputed suit promissory notes to the Government Handwriting. held that Any application filed under Order XLI Rule 27 (1) (aa) of CPC must be disposed of along with the appeal, but the Appellate Court disposed of the application filed by the revision-petitioners separately pending appeal which is against law. Thereby committed material irregularity

.HIGH COURT OF ANDHRA PRADESH

TUESDAY ,THE TWENTY EIGHTH DAY OF MARCH

TWO THOUSAND AND TWENTY THREE

PRSENT

THE HONOURABLE SRI JUSTICE B V L N CHAKRAVARTHI

CIVIL REVISION PETITION NO: 2387 OF 2015

Between:

1. PILLA VENKATA SUBBA RAO, KRISHNA DIST. & ANOTHER S/o. late

Ramachandra Rao, R/o. D.No. 47/48-2, Raju pet, Machilipatnam, Krishna

District.

2. Pilla maha Lakshmi W/o. Venkata Subba Rao, R/o. D.No. 47/48-2, Raju

pet, Machilipatnam, Krishna District.

...PETITIONER(S)

AND:

1. ANISETTI NAGA RANI S/o. late Srinivasa Rao, R/o. D.No. 4/874-3, Raju

pet, Machilipatnam, Krishna District.

...RESPONDENTS

Counsel for the Petitioner(s): NARASIMHA RAO GUDISEVA

Counsel for the Respondents: MUMMANENI SRINIVASA RAO

The Court made the following: ORDER

2023:APHC:9934

HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

****

CIVIL REVISION PETITION NO.2387 OF 2015

Between:

1. Pilla Venkata Subba Rao, S/o. Late Ramachandra

Rao, Hindu, 52 years, Cultivation, R/o. Door

No.47/48-2, Raju pet, Machilipatnam, Krishna

District.

2. Pilla Maha Lakshmi, W/o. Venkata Subba Rao,

Hindu, 49 years, Housewife, R/o. D.No.47/48-2,

Raju pet, Machilipatnam, Krishna District.

… Petitioners/Appellants

 Versus

Anisetti Naga Rani, W/o. Late Srinivasa Rao, Hindu, 36

years, R/o. D.No.4/874-3, Raju pet, Machilipatnam,

Krishna District.

 ... Respondent/Respondent

* * * * *

DATE OF ORDER PRONOUNCED : 28.03.2023.

SUBMITTED FOR APPROVAL:

THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

1. Whether Reporters of Local Newspapers

 may be allowed to see the Order? Yes/No

2. Whether the copy of Order may be

 marked to Law Reporters/Journals? Yes/No

3. Whether His Lordship wish to see the

 fair copy of the Order? Yes/No

_____________________________

 B.V.L.N.CHAKRAVARTHI, J

2023:APHC:9934

Page 2 of 7

* HON'BLE SRI JUSTICE B.V.L.N.CHAKRAVARTHI

+ CIVIL REVISION PETITION NO.2387 OF 2015

% 28.03.2023

# Between:

1. Pilla Venkata Subba Rao, S/o. Late Ramachandra

Rao, Hindu, 52 years, Cultivation, R/o. Door

No.47/48-2, Raju pet, Machilipatnam, Krishna

District.

2. Pilla Maha Lakshmi, W/o. Venkata Subba Rao,

Hindu, 49 years, Housewife, R/o. D.No.47/48-2,

Raju pet, Machilipatnam, Krishna District.

… Petitioners/Appellants

 Versus

Anisetti Naga Rani, W/o. Late Srinivasa Rao, Hindu, 36

years, R/o. D.No.4/874-3, Raju pet, Machilipatnam,

Krishna District.

 ... Respondent/Respondent

! Counsel for the Revisionpetitioners/Appellants

:: Sri Narasimha Rao

Gudiseva

^ Counsel for the Respondent :: Sri Mummaneni

Srinivasa Rao

< Gist:

> Head Note:

? Cases referred:

1. G.Shashikala (Died) Through L.Rs. vs. G.Kalawati Bai

(Died) Through L.R. & Others in Civil Appeal Nos. 3969-

3970 of 2019 (Arising out of S.L.P.(C) Nos.30911- 30912 of

2018), dated 16.04.2019.

This Court made the following:

2023:APHC:9934

Page 3 of 7

THE HONOURABLE SRI JUSTICE B.V.L.N.CHAKRAVARTI

CIVIL REVISION PETITION NO.2387 of 2015

O R D E R:

Heard Sri Narasimha Rao Gudiseva, learned counsel for

revision-petitioners. No representation for respondent for the

last two adjournments, though post under the caption ‘FOR

ORDERS’.

2. This Civil Revision Petition is directed under Section 115

of the Civil Procedure Code, 1908 (for brevity ‘CPC’) against the

Order, dated 20.04.2015 in I.A.No.139 of 2014 in A.S.No.9 of

2012 on the file of X Additional District Judge’s Court,

Machilipatnam of Krishna District.

3. It is the contention of revision-petitioners that they

preferred appeal vide A.S.No.9 of 2012 on the file of X Additional

District Court, Krishna at Machilipatnam against the Decree

and Judgment passed by the I Additional Junior Civil Judge’s

Court, Machilipatnam in O.S.No.459 of 2008. During the

pendency of appeal proceedings, the revision-petitioners filed

petition under Order XLI Rule 27 (1) (aa) and Section 151 of

CPC read with Section 45 of the Evidence Act, 1872 to send the

disputed suit promissory notes to the Government Handwriting

2023:APHC:9934

Page 4 of 7

Expert for his ‘Opinion’ and the same was ‘Dismissed’ on

20.04.2015, challenging the said impugned Order, the revision

was preferred.

4. The point that arises for consideration is:-

“Whether the Appellate Court committed any

irregularity in the Order, dated 20.04.2015 passed

in I.A.No.139 of 2014 in A.S.No.9 of 2012?”

5. P O I N T: -

A perusal of the record, it appears that similar application

was filed before the Trial Court and it was ‘Allowed’ vide Order,

dated 01.06.2011 and the disputed promissory notes was sent

to the Handwriting Expert Government Handwriting Expert for

his ‘Opinion’. It further appears that the Government

Handwriting Expert after examining the promissory notes

‘Returned’ them with a request to send sample handwritings in

Telugu for comparison purpose. Subsequently, the suit was

‘decreed’ by the Trial Court. The revision-petitioners preferred

appeal, questioning the ‘Decree’ and ‘Judgment’ of the Trial

Court, pending appeal, they filed I.A.No.139 of 2014 under

Order XLI Rule 27 (1) (aa) and Section 151 of CPC read with

Section 45 of the Evidence Act, 1872 to send the promissory

notes to the Expert.

2023:APHC:9934

Page 5 of 7

6. The relevant provision of law under which the revisionpetitioners filed the petition before the Appellate Court, is

extracted as under:

Order XLI of CPC prescribes ‘Appeals from Original

Decrees’

Rule 27 of CPC deals with ‘Production of additional

evidence in Appellate Court: -

(1) The parties to an appeal shall not be entitled

to produce additional evidence, whether oral

or documentary, in the Appellate Court. But

if---

(a) . . . . . .

(aa) the party seeking to produce

additional evidence, establishes that

notwithstanding the exercise of due diligent,

such evidence was not within his knowledge

or could not, after the exercise of due

diligence, be produced by him at the time

when the decree appealed against was

passed, or

(b) . . . . . .

7. In my considered opinion, the need to remand the case to

the First Appellate Court has occasioned because the said Court

committed a legal error while deciding the application filed by

2023:APHC:9934

Page 6 of 7

the revision-petitioners/defendants under Order XLI Rule 27 (1)

(aa) of CPC, separately.

8. The Honourable Apex Court in G.Shashikala (Died)

Through L.Rs. vs. G.Kalawati Bai (Died) Through L.R. &

Others1 held at para No.13 as under:

“The need to remand the case to the High Court has occasioned

for the reason that the High Court committed jurisdictional error

while deciding the application filed by the respondents under

Order 41 Rule 27 of the Code, separately.”

9. The First Appellate Court ‘Dismissed’ the application

pending disposal of the first appeal. Any application filed under

Order XLI Rule 27 (1) (aa) of CPC must be disposed of along

with the appeal, but the Appellate Court disposed of the

application filed by the revision-petitioners separately pending

appeal which is against law. Thereby committed material

irregularity. Keeping in view of the law laid down by the

Honourable Supreme Court, the revision-petition is allowed

setting-aside the Order, dated 20.04.2015 in I.A.No.139 of 2014

in A.S.No.9 of 2012 passed by X Additional District Judge,

Krishna at Machilipatnam, by remanding the matter to the First

1 Civil Appeal Nos.3969-3970 of 2019 (Arising out of S.L.P.(C) Nos.30911-30912

of 2018), dated 16.04.2019.

2023:APHC:9934

Page 7 of 7

Appellate Court with a direction to decide the application afresh

on merits along with the appeal in accordance with law

uninfluenced by any observation made in this Order.

10. In the result, the Civil Revision Petition is ‘Allowed’. There

shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

B.V.L.N.CHAKRAVARTHI, J

28th March, 2023.

DNB

2023:APHC:9934