The appellate court must consider applications for additional evidence at the time of hearing the appeal, ensuring relevance to the case.

ORDER:

RAVI NATH TILHARI, J.

Heard Sri Y.Sudhakar, learned counsel for the petitioners and perused the material on record.

2. The petitioners are the defendants in O.S.No.256 of 2018. The suit was filed by the respondent/plaintiff. It was decreed. The petitioners filed A.S.No.39 of 2023, which is pending before the learned Court of Principal Civil Judge (Senior Division), Gajuwaka. In the appeal, the petitioners filed I.A.No.290 of 2024 under Order 41 Rule 27 of the Code of Civil Procedure (in short ‘C.P.C’) for additional evidence. The respondents opposed the application.

3. By the order under challenge dated 08.11.2024, the learned Principal Civil Judge (Senior Division), directed to submit the arguments along with the main appeal simultaneously. The learned Court placed reliance in Uggumudi Chandra Reddy v. Palaganti Krishna Reddy (CR.P.No.5773 of 2016) decided on 11.08.2022, for the proposition that an application under Order 41 Rule 27 C.P.C. to receive additional evidence has to be dealt along with the appeal, but not independently, by following the procedure laid down under law.

4. Learned counsel for the petitioners placing reliance in Sanjay Kumar Singh v. State of Jharkhand, [(2022) 7 SCC 247], contended that the general principle is that the appellate Court should not travel outside the record of the lower Court and cannot take any evidence in appeal. But, there is an exception, i.e.Order 41 Rule 27 C.P.C, which enables the appellate Court to take additional evidence in exceptional circumstances. He submits that in view thereof, the learned court was not right in not deciding the application as it has the power in exceptional circumstances to permit additional evidence.

5. The aforesaid submission, so far as the legal position is concerned that the appellate Court has the power to receive additional evidence is concerned, may be correct but deserves rejection at this stage, because the petitioners’ application for additional evidence has not been rejected but the only order passed is that the application will be considered at the time of hearing of the appeal, simultaneously, for which the petitioners have been asked to advance the arguments at that appropriate stage.

6. In the view of this Court, at the stage of consideration of the application under Order 41 Rule 27 C.P.C. the learned court shall consider if the additional evidence deserves to be received or not in appeal. So far as the stage to consider application under Order 41 Rule 27 CPC is concerned, the law is well settled that an application for additional evidence is to be considered at the time of consideration of the appeal.

7. In Union of India v. Ibrahim Uddin, [(2012) 8 SCC 148], the Hon’ble Apex Court has laid down the stage of consideration of the application under Order 41 Rule 27 C.P.C. and as per this judgment an application under Order 41 Rule 27 C.P.C. is to be considered at the time of hearing of appeal on merits, so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issue involved. It has been clearly held that an application for taking additional evidence on record at an appellate stage, even if filed during pendency of the appeal, is to be heard at the time of the final hearing of the appeal, at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence is required to be taken on record in order to pronounce the judgment or for any other substantial cause. If the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total non application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is allowed to be ignored. It is relevant to reproduce paragraph no. 49 of the judgment in the case of Ibrahim Uddin (supra) as under:

“49. An application under Or