When an appellate court allows additional evidence under Order XLI Rule 27 CPC, it must strictly comply with Order XLI Rule 28 CPC by either taking the evidence itself or remitting the case to the trial court to allow for proper marking of evidence and cross-examination.

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 17.03.2007 PASSED IN R.A.NO.99/2006 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) & CJM, SHIMOGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 28.06.2006 PASSED IN OS.NO.86/1993 ON THE FILE OF THE I ADDL.CIVIL JUDGE (JR.DN.), SHIMOGA.

THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR

ORAL JUDGMENT

This appeal by respondent No.1 in R.A.No.99/2006 is directed against the impugned judgment and decree dated 17.03.2007, whereby the said appeal preferred by respondent Nos.1 to 7 was allowed by the Principal Civil Judge (Sr.Dn.) & CJM, Shimoga (for short “the First Appellate Court”)

2. Briefly stated the facts in nutshell are as under:

A perusal of the material on record will indicate that respondent Nos.1 to 7 - plaintiffs instituted a suit in O.S.No.86/1993 against the appellant-defendant No.1 and other defendants for permanent injunction and other reliefs in relation to the suit schedule immovable property. The said suit having been contested by the appellant / defendant No.1, the same came to be dismissed by the Trial Court vide judgment and decree dated 28.06.2006. Aggrieved by the said judgment and decree passed in O.S No.86/1993 by the Trial Court, respondent Nos.1 to 7 filed an appeal in R.A.No.99/2006 before the First Appellate Court, in the said appeal, respondent Nos.1 to 7 filed two applications viz. I.A.Nos.3 and 4 under Order XLI Rule 27 CPC and Order VII Rule 14 CPC for permission to produce Additional documents by condoning the delay in production of documents. The said application having been opposed by the appellant herein, the First Appellate Court proceeded to pass the impugned judgment and decree allowing both the applications, I.A.Nos.3 and 4 filed by respondent Nos.1 to 7 and thereby directing the said additional evidence to be received in the appeal and consequently, setting aside the judgment and decree passed by the Trial Court and accordingly decreeing the suit filed by the plaintiffs against the defendants. Aggrieved by the impugned judgment and decree passed by the First Appellate Court in R.A.No.99/2006, the appellant-defendant No.1 is before this Court by way of the present appeal.

3. On 26.10.2010, the present appeal was admitted to consider the following substantial question of law as under:

“This appeal is admitted to consider the following substantial question of law;

“Whether the Appellate Court was justified in recording a finding, without the additional documents being marked and proved in accordance with law?”

Learned counsel for the appellant submits that the grant pleaded by the plaintiffs before the Land Tribunal is rejected and there is a false representation. He wants to file an application.

In view of the submission made, learned counsel for the appellant is at liberty to serve the copy to the other side and file the same in the Court.

Interim stay is granted and it shall be in operation till the disposal of the suit.”

4. Learned counsel for the appellant submits that having come to the conclusion that the additional evidence sought to be produced by the respondents-plaintiffs was relevant and necessary and has to be permitted to be produced by the plaintiffs, it was incumbent upon the First Appellate Court to follow the procedure prescribed under Order XLI Rule 28 CPC, inasmuch as the First Appellate Court ought to have either remitted the matter back to the Trial Court for reconsideration afresh, in accordance with law, by permitting the said d