CRP/4846/2013 of GADDAMEEDI GOLLA BALAIAH Vs GANGARAJ KRISHNAIAH on 31 December 2021

1. Gaddameedi Golla Balaiah, S/o. Gopana, (died) aged 56 years, Occ: Agriculture,r/o. Near Chowdamma, Gudi, Veeranapet Street, Mahabubnagar Town andDistrict.r/o. Near Chowdamma, Gudi, Veeranapet Street, Mahabubnagar Town andDistrict.

2. J. Srinivasulu, S/o, Gaddameedi Golla Balalah, aged 49 years, Occ: Auto Driver,3. J. Ramanjaneyulu, S/o. Late Gaddameedi Golla Balaiah, aged 39 years, Occ:Labour3. J. Ramanjaneyulu, S/o. Late Gaddameedi Golla Balaiah, aged 39 years, Occ:Labour

4. J. Gopikrishna S/o. Gaddameedi Golla Balaiah, aged 35 years, Occ: HamaliAII are R/o. H.No.3-13-62/5, Veerannapet Street, lvlahaboobnagar Town &District.AII are R/o. H.No.3-13-62/5, Veerannapet Street, lvlahaboobnagar Town &District.

(Petitioners 2 to 4 are brought on record as LRs of the deceased P1 as percourt order dated 26'1 1'2021'^''o:I3;'#'30*'lL"=r,r,o".*,oppELLANrcourt order dated 26'1 1'2021'^''o:I3;'#'30*'lL"=r,r,o".*,oppELLANrAND

1. Gangaraj Krishnaiah, S/o. Sayanna, (died) aged 60 years, Occ: Agriculture. Fyo.H. No.1-8-97/3/A, Tirmaldev Gutla, lVlahabubnagar Town and District.H. No.1-8-97/3/A, Tirmaldev Gutla, lVlahabubnagar Town and District.2. Gangaaj Srinivas, S/o. Late Gangaraj Krishnaiah, aged 45 years,

3. Gangaraj Yadaiah, S/o. Late Gangaraj Krishnarah, aged 40 years, years,4. Gangaraj Vishwanath, S/o. Late Gangaraj Krishnaiah, aged 35 years,5. Gangaraj Ramesh, S/o. Late Gangaraj Krishnaiah,All are Rio. 1-8-97131A, Tirmaldev Gutta, l\,4ahabubnagar Town & Distract(RR2 to 5 are brought on record as LRs ofthe deceased Rl as per Courtorder dated 26 "t [1'2021'1#!83,frl ]ER'islRESpoNDENrs/RESpoNDENrs ER'islRESpoNDENrs/RESpoNDENrs CRPMP. NO: 6637 OF 2013

Petition under Section 151 CPC praying that in the circumstances stated in theaffidavjt filed therewith, the High Court may be [pleased ]to suspend the operation oforder dated 1 1 .06.2013 in lA.No.934 ot 2012 in AS.No.58 of 2012 on the file of thecourt of the I Additional District Court at Mahabubnagar.

Counsel for the Petitioner: M/S. N. USHA KIRAN

Counsel for the Respondent Nos.3, 4 & 5: SRI K. CHAITANYA

The Court made the following: OROER

HON'BLE SMT.JUSTICE [P.SREE ][SUDIIA]

SION PETITION No.4846 of[2013]

CIVILSION PETITION ORDER

1. This Revision is directed against the [order ][dated ][11.06.2013]passed in I.A.No.934 of 2012 in [A.S.No ]58 [of ][2Ol2 ][ot ][the file ][of]the learned I Additional [District Court, ][Mahabubnagar, ][whereby]dismissing the application filed by the [petitioner-plaintiff to ][receive]the enclosed documents [as ]additional [evidence.]

2. The petitioner filed an [application ][under ][Order ][41 ][Rule ][27]CPC to receive the enclosed [documents as additional ][evidence ][in]the pending appeal being [A.S.No.58 ][of ][2012. The ][respondent]herein filed a suit in O.S.No.No.S8 of [2OO7 ][in ][the ][Court ][of]I Additional Senior Civil [Judge ][(mC), ][Mahabubnagar, ][seeking]perpetual injunction restraining the [petitioner herein and ][his ][men]from interfering with the [suit ][schedule ][propert-v. ][The said ][suit ][was]decreed with costs by [order dated 01.06.2010. ][Aggrieved ][by ][the]same, the petitioner [preferred the ][above ][appeal. ][Pending ][appeal, ][he]filed the present application, [which ][was dismissed.]

3. Learned counsel for the [petitioner would ][contend ][that ][the]Appellate Court failed [to ][appreciate ][the relevaicy ][of ][the ][evidence]sought to be [produced ][as additional ][evidence. ][He ][would further]contend that the spirit [and ][substance ][of ][Order ][41 ][Rule ][27 ][CPC]where the petitioner has [made ][out ][sufficient ][cause ][for ][his ][non-]production of the documents [in ][the ][suit ][and ][that ][the ][documents]sought to be [produced ][in ][the ][appeal are misplaced ][due ][to ][the ][ill-]health of the [petitioner ][and ][after ][recovery ][from ][his ][illness' ][the]petitioner had found the [documents ][at ][his ][home, ][which ][are]

essential to prove his possession over [the ][suit ][schedule property,]and filed the present application [pending the ][appeal.]

+. Admittedly, it is a suit for injunction and the [possession ][is ][to]be established by the respective [parties and ][the ][trial ][Court ][in ][its]judgment observed that after considering the oral anddocumentary evidence the [plaintiff ]is [in ][possession ][and enjoyment]over the suit land for the [years ][1992-93, ][2OO4'2OOS ][and ][the]certified copy of extract of record [of ][rights would ][also show ][that ][the]plaintiff is the pattadar oI the land and therefore [came ][to ][the]conclusion that the plaintiff [proved ]his [possession ][and ][enjoyment]over the suit lands and [granted ]the [relief. ][Whereas ][the documents]sought to be filed by the [petitioner ][herein are certified ][copies ][of]pahanies and some of which are attested [copies, ][but ][the ][Court]below did not consider and as such now he [wanted ][to ][file ][lhose]documents to demonstrate [that ][he ][was ][in ][continuous ][possession.]The petitioner herein on the [one hand ][contends ][that ][the]documents which are sought [to ][be ][included ][as ][additional ][evidence]are essential for [effective ][and ][complete disposal of ][the ][appeal and]on the other hand the [respondent ][would ][contend ][that ][Exs ][A1, ][A3]to A l 4 clearly establish his [possession]

5. Now the point to be delermined [by ][this ][Court is ][whether the]appellate Court disposed [of the ][application under ][Order 41 ][Rule 27]in a proper [persPective.]

6. It is the case of the [petitioner herein ][that ][the ][concerned]documents were misplaced [by ][him at ][home ][and could ][not ][be ][found]and produced before [the ][lower ][Court due ][to ][his ][illness ][The]petitioner also contend that [the interlocutory applications ][have to]

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be dealt with and disposed of independently and not along with themain appeal. In this regard, he placed a judgement of this Court inKARTYAKANTI GOPI V/s. K.RAMESHT wherein it was held asfollows:

"7. Whtte disposing of the application filed under Order 41,Rule 27 CPC for receiuing additional euidence, the appellateCourt has to consider uhether those documents are ,eiesruryfor [effectiuely ][and ][completely ]disposing of the appeal before it.For that purpose, it is essentiaL to hear the appeal togetherutith the additional euidence application. Untess the saidprocedure is adopted, the appellate Court maA not be in aposttion to coffectlv appreciate as to tuhether the d.ocunentsare to be receiued as additional euidence in the appeal andnecessary for disposing of the appeal.',

"10. ... Since the appellate Court fatted to dispose of theadditional euidence pet{tion as uell as the CMAsimultaneously in accordance Luith latD, the decision renderedby the first Appellate Court being not legal and contrary to theestabtished procedure is liable to be set aside tn thesereuisions. "

7. In the above case law this Court observed that the appellanthas provided reasons for his inability in producing the saiddocuments at an earlier stage. Order 21, Rule 27(1)(aa) CpCprovides for the parties to file additional evidence at the stage ofappeal on one of two grounds after the exercise of due diligence.Firstly, if the concerned evidence was not within the knowledge ofthe party and secondly, after application of due diligence, theycould not produce it when the decree appealed against was passed.

8. In the instant case, the appellate Court dismissed theapplication saying that the petitioner herein obtained all thedocuments prior to pronouncement of the judgment in the suit. Ilat all the petitioner is so desirous to file those documents, he cando so during the pendency of the suit. But the appellate Court lose sight of the fact that while disposing of the application filed underOrder 41 Rule 27 CPC for receiving additional evidence, it has toconsider whether those documents are necessary for effectively andcompletely disposing of the appeal before it, for which it isessential to hear the appeal together with the additional evidenceapplication and unless,the same is adopted, the appellate Courtmay not be in a position to correctly appreciate as to whether thedocuments are to be received as additional evidence in the appeal.Therefore, the approach of the appellate Court in dismissing theapplication is contrary to the established procedure, and as such,it is liable to be set aside.

9. Accordingly, the Civil Revision Petition is allowed and theorder dated 11.06.2013 passed in I-A.No.934 of 2Ol2 in A.S.No.58of 2012 on the file of the learned I Additional District Court,Mahabubnagar, is setting aside.

10. Miscellaneous Petitions, if any, pending in this appeal shallstand closed in the light of this final order.

SD/.K.AM MAJIASSISTANT REGISTRARSD/.K.AMMAJIASSISTANT REGISTRARSECTION OFFICERASSISTANT REGISTRARSD/.K.AMMAJIASSISTANT REGISTRARSECTION OFFICER

Note: Name of the Counsel for the petitionerWas substituted as per letter of the CounselFor the Petitioner dated 15.03.2022

//TRUE COPY//

To,

1. The I Additional District Judge, Ir/ahabubnagar.

2. One CC to l\,,l/s_ N. Usha Kiran, Advocate IOPUC]IOPUC]

3. One CC to Sri K. Chaitanya, Advocate [OpUC]

4. Two CD CopiesOne Spare CopygbrOne Spare Copygbr DATED: 3,,11121202'l AMENDED ORDER

CRP.No.4846 of 20'13

ALLOWING THE CRP

O

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