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High Court of Andhra Pradesh
GODA RAGHURAM & R. KANTHA RAO
M/s. Durga Matha House Building Constructions Co. Op. Housing Society Limited & Another
Versus
Sada Yellaiah & Others
REV. A.S.M.P. NO. 2484, 2523 & 2482 OF 2010 IN A.S.NO.719, 723 & 725 OF 2005
Decided On : 21-03-2012
Civil Procedure Code, 1908 – Additional Evidence – Amendment of plaint – Applications seeking review of the common judgment whereby the appeals were dismissed confirming the judgments and decrees – Suits filed by the petitioners seeking permanent injunction claiming possession of the schedule properties on the date of institution of the respective suits – Petitioners herein who are the appellants filed five applications – Plaint for amendment of the cause title in the appeal for respondent as respondents in the appeal; receive two more additional documents as additional evidence in the appellants filed along with the appeal for reception of five additional documents specified therein, as additional evidence; and to receive the three documents specified therein as additional evidence. It is the admitted and demonstrable factual scenario that the common judgment in the three (3) appeals was pronounced and delivered without disposing of the eight (8) applications mentioned above. It is asserted by the petitioners herein that non-consideration of these applications constitutes an error apparent on the face of the record requiring review of the common judgment. Review of the common judgment is sought on other grounds as well, in these applications for review. learned senior counsel instructed learned counsel for the petitioners/appellants in learned counsel for the appellant in learned counsel representing learned counsel in contend that non-consideration of the applications by this Court while adjudicating and passing the common judgment in the appeals, is an error apparent on the face of record –Held, It is not within the province of this court in these applications (seeking review of the judgment in the appeals) to consider whether the several applications filed by the appellant including for production of additional evidence on merits merit acceptance; and whether if the applications are allowed and the additional evidence taken on record and considered the same would have any material bearing on the outcome of the appeals. This is not the stage to go into the merits of the several applications consideration is appropriate when the miscellaneous applications are taken up for consideration and adjudication on merits along with the substantive appeals facts and circumstances of the case the several documents presented for consideration as the additional evidence and the other applications seeking several other reliefs -for amendment of the plaint, for amendment of the cause title in the appeal and for pleading certain persons as respondents in an appeal, requires to be considered independently. This is a substantive adjudicatory exercise in itself. It is not pragmatic nor conducive to expeditious and efficient adjudication to consider the merits of each of the miscellaneous applications prior to considering whether the common judgment must be set aside on the singular ground that several pending miscellaneous applications including those for production of additional evidence were neither adverted to nor determined in passing the judgment –Appeal allowed.
Goda Raghuram, J.
These are applications seeking review of the common judgment dated 16-07-2010 passed in A.S.Nos.719; 723 and 725 of 2005 whereby the appeals were dismissed confirming the judgments and decrees in O.S.Nos.109 of 2002; 178 of 2003 and 179 of 2003 on the file of the learned V-Additional District Judge, Ranga Reddy District. The trial Court dismissed the three suits filed by the petitioners seeking permanent injunction in respect of the suit schedule properties claiming possession of the schedule properties on the date of institution of the respective suits.
In A.S.No.723 of 2005, the petitioners herein who are the appellants filed five applications – (1) A.S.M.P.No.2543 of 2007 for reception of specified documents appended to the application as additional evidence in the appeal; (2) A.S.M.P.No.1583 of 2008 seeking amendment of the suit schedule property in (the substantive suit) O.S.No.179 of 2003; (3) A.S.M.P.No.1584 of 2008 for amendment of the Plaint in O.S.No.179 of 2003; (4) A.S.M.P.No. 1585 of 2008 for amendment of the cause title in the appeal; (5) A.S.M.P.No.1701 of 2008 for impleading respondent Nos. 18 to 27, as respondents in the appeal; and (6) A.S.M.P.No.1768 of 2008 to receive two more additional documents as additional evidence in the appeal.
In A.S.No.725 of 2005, the appellants filed A.S.M.P.No.374 of 2006 along with the appeal for reception of five additional documents specified therein, as additional evidence; and A.S.M.P.No.2666 of 2008 to receive the three documents specified therein as additional evidence.
It is the admitted and demonstrable factual scenario that the common judgment in the three(3) appeals was pronounced and delivered on 16-07-2010 without disposing of the eight (8) applications mentioned above. It is asserted by the petitioners herein that non-consideration of these applications constitutes an error apparent on the face of the record requiring review of the common judgment. Review of the common judgment is sought on other grounds as well, in these applications for review.
Sri D.V.Seetharam Murthy, learned senior counsel instructed by Sri A.Ananda Rao, learned counsel for the petitioners/appellants in A.S.No.723 of 2005, Sri A. Rama Krishna, learned counsel for the appellant in A.S.No.725 of 2005 and Sri P. Durga Prasad, learned counsel representing Sri A.K.Narasimha Rao, learned counsel in A.S.No.719 of 2005 contend that non-consideration of the applications by this Court while adjudicating and passing the common judgment in the appeals, is an error apparent on the face of record.
Sri V.L.N.G.K. Murthy, learned counsel instructed by Sri P.Subhashan Reddy, the learned counsel for the respondents in the respective applications for review contends that notwithstanding non-consideration of the applications including for reception of additional evidence, the common judgment is not liable to be reviewed. It is contended that though non-consideration of the applications, in particular the applications filed for reception of additional evidence may amount to an error apparent on the face of record, every apparent error does not legitimize review unless the error has also occasioned miscarriage of justice. Precedents are cited by the learned counsel appearing both sides for the respective points of view.
Order XLI Rule 27 CPC enacts the contours for production of additional evidence in the appellate court. The provision enjoins that parties to an appeal shall not be entitled to produce additional evidence, oral or documentary, unless the court from whose decree the appeal is preferred had refused to admit the evidence which ought to have been admitted; the party seeking to produce additional evidence establishes that despite due diligence such evidence was not within his knowledge or could not, despite due diligence be produced at the time when the decree appealed against was passed; the appellate court requires any document to be produced or any witness to be examined to
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