Procedural applications for additional evidence must be addressed alongside the main appeal to ensure just adjudication.

This Original petition is filed by the petitioner/appellant and defendant by challenging the order passed by the First appellate court in I.A.No.2/2022 in A.S.No.40/2019 pending on the file of Sub court, Karunagappally.

2. Heard the arguments of the learned counsel for the petitioner and the learned counsel for the respondent.

3. The case of the petitioner is that the respondent filed a suit against the petitioner for realisation of 3,05,000/- before the trial court, which was decreed. And the petitioner has filed an appeal as against the decree and during the pendency of the appeal, the petitioner filed I.A.No. 2/2022 under Order 26 Rule 9 of C.P.C. for appointing the expert commissioner that is an engineer for valuing the construction cost, which came to be dismissed. Accordingly, this petition is before this court.

4. The learned counsel for the petitioner mainly contended that the first Appellate court should not have dismissed the application independently, it should be heard along with the main one, as the petitioner filed an application for leading additional evidence by getting an expert opinion by appointing the commissioner, therefore, the order under challenge is illegal, hence liable to be dismissed. The learned counsel also contended on merits that the respondent contractor constructed the house for the petitioner at the rate of Rs. Rs.1,300/- per foot, the respondent seeking an amount of application of Rs. 300,000/- on the ground that the square feet construction was 1800/Sq.feet. However, there is no written contract except an oral agreement between them therefore it is necessary for the court to ascertain the cost of the construction by appointing the expert commissioner or valuing the cost of construction. Therefore, the same was not done in the trial court, therefore it is necessary for the petitioner to appoint the commissioner in the Appellate court for adjudicating the fact in issue, hence prayed for dismissal of the petition.

5. Per contra, the learned counsel for the respondent objected to the petition mainly on the ground that the application is Order 29 Rule 9 of C.P.C., which is not Order 41 Rule 27 of C.P.C. for hearing the matter along with the main, therefore, it is contended that during the Trial stage the petitioner kept quiet and did not file any application for appointing the commissioner, and now he wants to file an application, which is not maintainable, hence he prayed for the dismissal of the petition.

6. Having heard the arguments and perused the records.

7. The point that arises for consideration is.

1. Whether Trial court committed error in dismissing the order 26 Rule 9 of C.P.C application filed by the petitioner?

8. On perusal of the records, it is ousted. It has to be mentioned if any application under Order 41 Rule 27 of C.P.C. is filed for production of additional evidence, either oral or document it has to be heard along with the matter. The very provisions of Order 41 Rule 27 and Rules 28 and 29 provide the procedure to be adopted by the Appellate court while recording or considering the additional evidence in the appellate stage. Here in this case, the petitioner did not adduce any additional evidence, either by way of documents or production of any oral evidence and any witnesses, by filing an affidavit in the appeal. With an application under Order 41 Rule 27 of C.P.C.. In order to be heard along with the main. But the petitioner filed only order 26 Rule 9 of C.P.C for appointing the expert commissioner, whether the Trial court cannot independently appoint the commissioner in the appellate stage. However, the petitioner ought to have invoked Order 41 Rule 27 of C.P.C. along with this present application under Order 26 Rule 9 of C.P.C. for collecting any document from the sub- registrar of