The main legal point established is that the High Court cannot go into questions of fact and the question of admitting additional evidence does not arise in a Second Appeal.

IMMANENI PANDURANGA RAO, J.

( 1 ) THIS can application filed by the petitioner/appellant under Order 41,rule 27 CPC for receiving three documents by way of additional evidence. The learned counsel for the petitioner/appellant relied upon a single Judge decision of Karnataka High Court in Sangaurwa vs. Shankarappa and argued that provisions of Order 41, Rule 27 CPC are applicable to Second Appeal and that additional evidence by way of documents can be allowed to be produced in second appeal. But a Division Bench of our High Court has taken a contrary view in Anisetti bhagyavathi vs. A. Satyanarayana holding that an application to receive additional evidence cannot be permitted at the stage of Second Appeal. The reasoning given by the Division Bench is that the High Court while hearing the Second appeal cannot go into the questions of fact and the question of admitting additional evidence in the Second Appeal does not arise. I am bound by the division Bench decision of our High Court and hence hold that the application for receiving additional evidence in a Second Appeal is not maintainable.

( 2 ) THE learned counsel for the petitioner/appellant relied upon the decision of the Supreme Court in K, Venkatramaiah vs. Seetharama Reddy and argued that the appellate court has power to allow additional evidence for any other substantial cause. But the casebefore the Supreme Court isa civil appeal arising against the decision of High Court acting as an Election Tribunal. Therefore, the supreme Court was exercising the powers of an appellate court, but, not the powers under Section 100 CPC in a Second Appeal.

( 3 ) ANOTHER Division Bench of our High Court held in Smt. C. Susheela vs. Smt. C. Patwari that receiving of additional evidence at the appellate stage is not a matter of course, that Order 41, Rule 27 CPC is couched in negative terms and that the Rule is that additional evidence should not be admitted except when it comes under any of the clauses of the said Rule. Order 41, Rule 27 empowers a parry to admit additional evidence if the lower court has refused to admit evidence which ought to have been admitted or the party seeking to adduce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or the appellate court requires any document to be produced or any witnesses to be examined to enable it to pronounce judgment, or for any other substantial cause.

( 4 ) ADMITTEDLY these three documents which are sought to be adduced by way of additional evidence were not produced before the trial court and the trial court has not refused to admit them as evidence. It cannot be said that the documentary evidence now sought to be produced is not within the knowledge of the petitioner, because, she was a party to the proceedings before the assistant Judge, the High Court and the Supreme Court. This court did not require those documents to be produced to enable me to pronounce judgment.

( 5 ) THE only reason given in the petition for adducing additional evidence is that by inadvertance the petitioner did not file those documents either in trial court or in First Appeal. Inadvertance is not one of the grounds recognised by order 41, Rule 27 CPC to enable the party to seek the production of additional evidence, nor does the inadvertance of a party constitute a substantial cause for permitting the petitioner to produce additional evidence.

( 6 ) EVEN otherwise the learned counsel for the petitioner/appellant wants to use those documents to prove an under-taking said to have been given by the respondent Nos. 1 and 2 that in the event of the suit being decreed they would demolish the illegal construction, if any. Therefore, that under taking will be relevant only if the disposal of the Second Appeal is in favour of the petitioner herein. This is a prematu

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