IMPORTANT POINT
Production of additional evidence – Where additional evidence sought to be adduced removes cloud of doubt over the case and evidence has a direct and important bearing on main issue in suit, such application may be allowed.

ORDER (COMMON)

Heard Sri P.S.P. Suresh Kumar, learned counsel for the revision-petitioner/plaintiff in C.R.P.No.2704 of 2015 and appellant/plaintiff in C.M.A.No.527 of 2015 and Sri K.Rama Koteswara Rao, learned counsel for respondent Nos.1, 2 and 4 and Sri Ch.Ramesh Babu, learned counsel for the respondent No.3 in both C.R.P.No.2704 of 2015 and C.M.A.No.527 of 2015.

2. C.M.A.No.527 of 2015 is directed against the Judgment, dated 27.04.2015 passed in Appeal Suit No.12 of 2013 on the file of XVI Additional District & Sessions Judge, Nandigama, preferred against the Judgment and Decree passed in O.S.No.381 of 2003, dated 28.02.2013 passed by the Principal Junior Civil Judge, Nandigama.

3. C.R.P.No.2704 of 2015 is directed against the Order, dated 27.04.2015 passed in I.A.No.914 of 2014 in A.S.No.12 of 2013 on the file of XVI Additional District & Sessions Judge, Nandigama.

4. The revision-petitioner in C.R.P.No.2704 of 2015, and appellant in C.M.A.No.527 of 2015 is the respondent/plaintiff in I.A.No.914 of 2014 in A.S.No.12 of 2013; respondent/plaintiff in A.S.No.12 of 2013 on the file of XVI Additional District & Sessions Judge, Nandigama and plaintiff in O.S.No.381 of 2003 on the file of Principal Junior Civil Judge’s Court, Nandigama. The respondents in C.R.P.No.2704 of 2015 are the petitioners/defendants in I.A.No.914 of 2014 in A.S.No.12 of 2013; appellants/defendants in A.S.No.12 of 2013 on the file of XVI Additional District & Sessions Judge, Nandigama and defendants in O.S.No.381 of 2003 on the file of Principal Junior Civil Judge’s Court, Nandigama.

5. The respondents/defendants in revision-petition and miscellaneous appeal, filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (for brevity “CPC”) vide I.A.No.914 of 2014 in A.S.No.12 of 2013.

6. Parties to the present revision-petition and miscellaneous appeal are referred to as they were arrayed in the suit before the Trial Court.

7. Learned counsel for the revision-petitioner/plaintiff in C.R.P.No.2704 of 2015 and appellant in C.M.A.No.527 of 2015 would submit that the learned First Appellate Court Judge erroneously allowed the I.A.No.914 of 2014 filed by the defendants under Order XLI Rule 27 CPC though conditions required to receive additional evidence in an appeal are not existed, and thereby committed material irregularity, by remitting the suit to the Trial Court for examination of witness to bring the additional evidence on record, and to decide the matter afresh.

8. Learned counsel for the defendants would submit that in spite of due diligence, defendants could not produce the documents which were filed before the First Appellate Court under the impugned order and had these documents filed before the Trial Court, the suit would be dismissed and hence, the First Appellate Judge rightly allowed the application and remitted the suit to the Trial Court to examine the concerned witness regarding the additional evidence, by giving opportunity to both sides and to pass the Judgment, afresh.

9. In the light of above rival contentions, the point that would arise for consideration in this Civil Miscellaneous Appeal and Civil Revision Petition is as under:—

“Whether the First Appellate Court committed any material irregularity in its impugned Order, dated 27.04.2015 in I.A.No.914 of 2014 in A.S.No.12 of 2013 by receiving the additional evidence produced under Order XLI Rule 27 CPC and remitting the suit to the Trial Court vide Judgment in A.S.No.12 of 2013, dated 27.04.2015?”

10. Point: - It is an admitted fact that the plaintiff filed the suit for partition of the plaint schedule properties into four equal shares and to allot one such share to the plaintiff and possession thereof by cancelling the Sale Deed, dated 02.12.2004.

11. The plaintiff’s contention is that the 1st defendant is father, 2nd defendant is brother, 4th defendant is sister’s daughter of the plaintiff, and that the plaintiff, D.1, D.2 and mother of D.4 are members of Hindu Joi