IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 5185 OF 2008 [Arising out of SLP(C) No.14423/2007]

NAMDEO S/O BAPURAO BANSOD .......APPELLANT(S)  

Versus

TUKARAM S/O MAROTRAO JADHAV .....RESPONDENT(S)

O R D E R

Leave granted.   Heard learned counsel for the parties.  The appellant and

respondent  are  respectively  the  plaintiff  and  defendant  in  a  suit  for  permanent

injunction.

2. The  appellant's  prayer  in  the  suit  was  to  restrain  the  respondent  from

interfering  with  his  possession  of  agricultural  field  S.No.131/2  of  Ridhora  village

measuring 4 acres.  The suit was dismissed by judgment and decree dated 31.7.2000.

The appellant filed an appeal before the District Judge, Akola.  During the pendency of

the said first appeal before the District Judge, the appellant filed two applications. One

application was for amendment of plaint, under Order 6 Rule 17 of CPC.  The second

application  was  under Order 41  Rule  27  of  CPC to  accept  the  certified  copies  of

revenue extracts relating to the suit land as additional evidence.  

........2.

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3. The first appellate Court allowed the application for amendment by order

dated 20.4.2002.  By another order dated 20.4.2002, the first appellate Court permitted

production of documents.  Ultimately, the first appellate Court dismissed the appeal by

order dated 19.6.2006. While doing so, it did not refer to or consider the documents,

production of which was permitted. The second appeal filed by the appellant was also

dismissed by the High Court.  Dealing with the contention of the appellant that the first

appellate  court  ought  to  have  considered  and  taken  into  account  the  additional

evidence, the High Court held that it was not sufficient for the appellant to merely file

an  application  under  Order  41  Rule  27  CPC;  that  he  ought  to  have  specifically

requested the first appellate court to remit the matter to the trial Court for further

evidence;  and that in the absence of such prayer, the first appellate Court was justified

in ignoring the said documents.   

4. It  is  true  that  the  first  appellate  Court  only  allowed  “production  of

documents” and did not make any order receiving them as additional evidence.  The

documents  produced  by  the  appellant  were  all  certified  copies  of  crops  statement,

record  of  rights,  index  of  lands  and  revenue  proceedings.   The  appellant  was

apparently under the impression that his application for additional  evidence  had been

allowed and the  

.....3.

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documents had been accepted as evidence.  Order 41 Rule 27 CPC contemplates that

wherever additional evidence is allowed to be produced by the appellate Court,  the

court  should record reasons for its admission.  We find that the first appellate Court

did  not  reject the application under Order 41 Rule 27 CPC, nor did  it  assign any

reasons while recording that only production of the documents was allowed.  We are of

the view that the procedure adopted was incorrect.  The first appellate Court ought to

have passed an order in respect of the application under Order 41 Rule 27 CPC, either

allowing  or  rejecting  the  application.  The  first  appellate  Court  has  considered the

application as if it was one under Order 13 Rule 1 CPC and not under Order 41 Rule

27 CPC.  The High Court ought to have therefore interfered in the matter by raising an

appropriate  question  of  law.  It  failed to  do  so.   The judgments,  therefore,  call for

interference.

5. We, therefore, allow this appeal and set aside the judgment and decree of the

High  Court and first  appellate Court and remand the matter to the first appellate

Court with a direction to consider and dispose of the application under Order 41 Rule

27 CPC in accordance with law and then decide the first appeal.

  ...........................J.    ( R.V. RAVEENDRAN )

New Delhi;    ...........................J. August 18, 2008.           ( P. SATHASIVAM )