Case Note & Summary
The present Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) arises from a judgment and decree dated 19.1.2010 passed by the I Addl. District Judge at Gulbarga in R.A.No.135/2007, which dismissed an appeal against the judgment and decree dated 25.10.2007 passed by the Civil Judge (Sr.Dn) at Shorapur in O.S.No.40/2006. The appellants, Sugappa and Nagamma, were the defendants in the original suit filed by the respondents (Shivashankerappa and others) seeking partition and separate possession of suit properties. The trial court decreed the suit in favor of the plaintiffs. The defendants appealed to the First Appellate Court, which dismissed the appeal. During the pendency of the appeal, the appellants filed an application under Order XLI Rule 27 CPC on 6.11.2009 seeking permission to adduce additional evidence. However, the First Appellate Court did not consider this application and proceeded to pronounce judgment on merits, dismissing the appeal. The substantial question of law framed by the High Court was whether the First Appellate Court committed serious illegality in not considering the IA filed under Order XLI Rule 27 CPC. The High Court held that the failure to consider the application for additional evidence before deciding the appeal on merits is a serious illegality that vitiates the appellate judgment. Consequently, the High Court allowed the appeal, set aside the judgment and decree of the First Appellate Court, and remanded the matter back to the First Appellate Court for fresh disposal after considering the application for additional evidence in accordance with law. The parties were directed to appear before the First Appellate Court on 7.9.2015.
Headnote
A) Civil Procedure - Appeal - Additional Evidence - Order XLI Rule 27 CPC - The First Appellate Court failed to consider an application for additional evidence filed under Order XLI Rule 27 CPC before pronouncing judgment on merits - Held that such failure amounts to a serious illegality and vitiates the appellate judgment - The matter was remanded back to the First Appellate Court for fresh disposal after considering the application (Paras 2-4).
Issue of Consideration
Whether the First Appellate Court committed serious illegality in not considering IA filed under Order XLI Rule 27 of CPC dated 6.11.2009 and pronouncing the judgment on merits?
Final Decision
The High Court allowed the appeal, set aside the judgment and decree of the First Appellate Court, and remanded the matter back to the First Appellate Court for fresh disposal after considering the application for additional evidence in accordance with law. The parties were directed to appear before the First Appellate Court on 7.9.2015.
Law Points
- Order XLI Rule 27 CPC
- Section 100 CPC
- Section 96 CPC
- Additional evidence in appeal
- Duty of appellate court to consider application for additional evidence
