The Appellate Court has the discretion to allow additional evidence to be produced in an appeal under Order 41 Rule 27 of CPC, but only if certain conditions are met.

ORDER :

Battu Devanand, J.

1. These two Civil Revision Petitions are filed under Article 227 of the Constitution of India aggrieved by the Common Order dated 27-01-2020 in I.A. Nos. 107 and 109 of 2019 in A.S. No. 73 of 2018 on the file of Principal District Judge, Chittoor.

2. Petitioner is the Plaintiff and the respondents are the Defendants in a suit in O.S. No. 344 of 2012 on the file of II Additional Junior Civil Judge, Chittoor.

3. Brief facts of the case are that:

The petitioner filed a suit in O.S. No. 344 of 2012 on the file of II Additional Junior Civil Judge, Chittoor, for grant of declaration for Plaint (B) and (C) schedule properties, deliver of vacant possession of 'B' schedule property and for permanent injunction restraining the defendants, their men and agents from interfering with the plaintiff's peaceful possession and enjoyment of the plaint "C" schedule property and for costs.

4. The said suit was dismissed on 05-06-2018. During the pendency of the said suit, the petitioner filed I.A. No. 340 of 2013 under Order 26 Rule 9 r/w 151 of CPC, seeking appointment of an Advocate Commissioner for local inspection to note down the existing physical features in the suit schedule property and to note down the encroachments, if any, in 'A' and 'B' schedule property. The said application was dismissed on 07-10-2015. Against the decree and Judgment dated 05.06.2018 in O.S. No. 344 of 2012, the petitioner filed an appeal in A.S. No. 73 of 2018 before the Principal District Judge, Chittoor, and it is pending.

5. In the said appeal, the petitioner filed I.A. No. 109 of 2019 under Order 26 Rule 9 of CPC with a prayer to appoint an Advocate Commissioner to note down the physical features of the petition/appeal "C' schedule property so as to note that the petitioner laid underground pipeline from his well in Sy. No. 266/6, which is on the western side of 'C' schedule land at a distance of 100 meters and also laid underground pipeline from his borewell in Sy. No. 290/1, which is on the southern side of the petition "C' schedule land at a distance of 1200 meters and to note down that the petitioner is raising wet crops in the 'C' schedule land and also to note that the existing mortem sugarcane crop and to note that there is no source of irrigation for the respondents to irrigate the petition 'C' schedule land and to file his report.

6. The petitioner also filed an application in I.A. No. 107 of 2019 under Order 41 Rule 27 of CPC to permit the petitioner to adduce additional evidence by seeking for appointment of Advocate Commissioner to note down the physical features of the suit lands i.e., underground pipelines laid from the petitioner's well and bore well to the plaint "C" schedule and that there are no other source of irrigation for the said lands and to permit him to file documents along with the petition as additional evidence.

7. The Appellate Court, having heard both the counsel and upon perusing the record, dismissed these two interlocutory applications by its Order dated 27.01.2020. Aggrieved by the same, the present Civil Revision Petitions are filed.

8. Heard Sri Gade Venkateswara Rao, learned counsel for the petitioner and Sri S.S. Bhatt, learned counsel for the respondents.

9. Learned counsel for the petitioner submits that the Appellate Court erroneously dismissed the petition filed by the petitioner for appointment of an Advocate Commissioner to note down the physical features of "C' schedule property ignoring the scope of Order 26 Rule 9 of CPC. He submits that though the petitioner filed a petition for appointment of an Advocate Commissioner before the trial Court, but due to technical reasons, the same is not considered, hence, it is necessitated to file this petition in this appeal to substantiate his case and to resolve controversy among the parties. Learned counsel would submit that the Appellate Court has mechanically dismissed the petition filed by the petitioner to permit him to adduce additional evidence by appo