Sunitha B. vs S. Nanjundaiah

Ram Mohan Reddy, J.—This is a plaintiff's second appeal calling in question the legality and validity of the judgment and decree dated 1.9.2010 in R.A.No.21/2009 of the Prl. Civil Judge (Sr.Dn.), Mandya, allowing the plaintiff's application under Order 41 Rule 27of CPC and dismissing the appeal.

Having heard the learned counsel for the parties, perused the pleadings and examined the judgment and decree impugned, the following substantial question of law arises for decision making:

Whether the lower Appellate Court was justified in disnassing the appeal after allowing I.A.No. 1 under Order 41 Rule 27of CPC filed by the plaintiff?

Indisputably, plaintiff preferred R.A.No.21/2009 calling in question the judgment and decree dated 4.2.2009 in O.S.No.96/2007 of the Additional Civil Judge (Jr.Dn.), Mandya, dismissing the suit. In the appeal, the plaintiff filed I.A.No. 1 under Order 41 Rule 27of CPC for production of additional documents and to adduce further evidence. That application when considered along with hearing of the appeal on merit was allowed and very strangely, the appeal stood dismissed.

Order 41 Rule 27provides for the production of the additional evidence in Appellate Court and when a party to the appeal files the application and the Appellate Court opines that there is requirement to produce the documents or any witnesses to be examined, so as to enable it to pronounce judgment, or for any other substantial cause, may allow such evidence or document to be produced, or witness to be examined.

Order 41 Rule 28provides for mode of taking additional evidence, whereunder the Appellate Court may either take such evidence, produced before it 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.

The lower Appellate Court having not followed the procedure as prescribed by Rule 28 after allowing the application under Rule 27, fell in error in dismissing the appeal.

In the circumstances, the judgment and decree of the lower Appellate Court insofar as it relates to dismissing the appeal, is unsustainable. The substantial question of law is answered in the negative holding that the lower Appellate Court was not justified in dismissing the appeal.

The appeal is allowed. The judgment and decree of the lower Appellate Court is quashed insofar as it relates to dismissal of the appeal, and the appeal is restored to file, while allowing I.A.No. 1 under Order 41 Rule 27of CPC is confirmed. Parties, since represented by learned counsel, are directed to be present before the lower Appellate Court on 3.2.2012 without further notice.