Navodaya Book House & Ors. v. Ahmed Cycle Stores & Ors.

THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.3200 OF 2009 ORDER: This Civil Revision Petition, under Article 227 of the Constitution of India, is directed against the order, dated 24.04.2009, in I.A.No.906 of 2007 in A.S.No.11 of 2007, on the file of the Family Court – cum – Additional Sessions Judge, Khammam, whereunder and whereby, the petition, filed under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for short, “C.P.C.”), to receive the documents filed through a separate list as additional evidence, was dismissed on the ground that the list of documents and the particulars of the documents have not been filed; that the nature of the documents has not been stated and that the petition is filed only to drag on the proceedings.

Learned counsel for the petitioners contended that the said documents have not been filed before the primary authority because the primary authority has not recorded any oral evidence on behalf of the petitioners; that no opportunity was given to the petitioners to produce the said documents to lead evidence; that when the present petition was filed by the petitioners to receive the said documents as additional evidence, duly explaining the reasons for not filing those documents before the primary authority, that petition was dismissed by giving a perverse finding stating that no description of the documents have been furnished and hence, he prays to set aside the impugned order.

On the other hand, learned counsel for the respondents supported the judgment of the trial Court and contended that the present petition appears to have been filed only to drag on the proceedings; that as seen from the impugned order of the first appellate Court, the description of the documents have not been furnished in the affidavit filed in support of the petition to receive the said documents and hence, he prays to dismiss the revision petition.

Under Order XLI Rule 27 C.P.C., receipt of additional evidence is not a matter of routine or matter of right. Unless the party satisfies any one of the three conditions mentioned in Order XLI Rule 27 C.P.C., the additional evidence cannot be received.

As seen from the list of documents filed in the petition, the description of the documents have been clearly furnished. For that reason, the first appellate Court ought not have dismissed the present petition to receive additional evidence under Order XLI Rule 27 C.P.C.

In a decision of the Honourable Supreme Court in Mahavir Singh v. Naresh Chandra[1], it is held thus: “It is only in the circumstances when the appellate Court requires such evidence to pronounce the Judgment the necessity to adduce additional evidence would arise and not in any other circumstances”. Therefore, only under the circumstances mentioned in the above decision, the additional evidence can be received.

The ground on which the present petition was dismissed does not come under the ambit and scope of Order XLI Rule 27 C.P.C. That aspect of the case has not been considered by the first appellate Court. A proper explanation has been given in the affidavit filed in support of the petition the primary authority, namely, the Deputy Commissioner of Endowments, Warangal, has not recorded any oral evidence on behalf of the petitioners; the Original Application was disposed of summarily and therefore, no opportunity was given to the petitioners to produce the said documents before the primary authority. Such an explanation is ought to have been accepted by the first appellate Court, because there was no opportunity given to the petitioners to produce the said documents to lead evidence before the Deputy Commissioner. Hence, the impugned order is liable to be set aside.