Present second appeal by the plaintiffs assailing the

judgment and decree dated 2.3.2023 in RA No.106/2022

on the file of the Prl. Family Court, Koppal, confirming the

judgment and decree dated 1.4.2019 in OS No.12/2015

(Old No.507/2009) on the file of the Senior Civil Judge &

JMFC, Kushtagi.

The suit being one for partition and separate

possession which was contested and dismissed and the

plaintiffs were denied share in the suit schedule property.

Assailing the judgment and decree passed by the trial

Court, regular appeal under Section 96 Code of Civil

Procedure, 1908 (“CPC”) was filed in RA.No.106/2022 by

the plaintiffs. I.A.No.2 was filed by the plaintiffs under

Order XLI Rule 27 CPC to receive additional evidence. The

first appellate Court by a separate order dated 22.8.2019

dismissed the application. Consequently, the appeal was

heard on merits and the judgment and decree of the trial

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Court stood confirmed. Assailing the same, the present

second appeal.

The present appeal is admitted on the following

substantial question of law by a separate order on

19.4.2023 which reads as under:

“Whether the First Appellate Court was justified

in dismissing the application I.A.No.2 filed by the

appellants under Order XLI Rule 27 separately

without considering the application along with

the main appeal?

4. Learned counsel on both sides have been heard on

the substantial question of law framed by this Court.

Since the limited question which falls for

consideration in the present appeal is, “whether an

application under Order XLI Rule 27 CPC is necessarily to

be considered along with the main” and other contentions

as stated in the appeal are challenged before this Court

may not be considered as the judgment and decree passed

by the first appellate Court needs to be set aside.

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Learned counsel for the respondent would not

dispute that the application I.A. No.2 was considered by

the first appellate Court by a separate order dated

27.8.2019 and not along with the main appeal. Perusal of

the order sheet placed by the appellant herein would

evidence that order on I.A.No.2 has been considered

separately. Order XLI Rule 27 CPC envisages that the

production of additional evidence before the appellate

Court is permitted if the appellate Court requires any

document to be produced or any witness to be examined

to enable it to pronounce the judgment or for any

substantial cause. The Court could only assess the

evidence before it at the time of hearing of the appeal and

without assessing the evidence already on record it cannot

be ascertained by the Court concerned that more

additional evidence would be necessary or not for proper

adjudication of the appeal. The application under Order

XLI Rule 27 CPC should be heard along with the appeal

and if at the time of hearing it transpires to the Court that

some

additional

evidence

are

essential

for

proper

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adjudication of the dispute between the parties, definitely

the Court has power and authority to take additional

evidence if the three conditions enumerated under Order

XLI Rule 27 CPC is fulfilled even at the appellate stage.

The substantial question of law is answered in

favour of the appellant holding that the application under

Order XLI Rule 27 CPC needs to be considered along with

the main appeal. The Hon'ble Apex Court in the case of

State

of

Rajasthan

vs.

T.N.

Sahani

&

others

[(2001)10 SCC 619] para No.4 which reads as under:

“4. It may be pointed out that this Court as long

back

as

in

1963

in

K.

Venkataramiah

v.

Seetharama Reddy [AIR 1963 SC 1526] pointed

out the scope of unamended provision of Order 41

Rule 27(c) that though there might well be cases

where even though the court found that it was able

to pronounce the judgment on the state of the

record as it was, and so, additional evidence could

not be required to enable it to pronounce the

judgment, it still considered that in the interest of

justice something which remained obscure should

be filled up