Gaddameedi Golla Balaiah v. Gangaraj Krishnaiah

IN THE HIGH COURT FOR THE STATE OF TELANGANA

AT HYOERABAD FRIDAY, THE THIRTY FIRST DAY OF DECEN/BER TWO THOUSAND AND TWENTY ONE PRESENT THE HONOURABLE SMT. JUSTICE P.SREE SUDHA CIVIL REVISION PETITION NO:4846 OF 2013 Petition under Nlicle 227 of the Constjtution of lndia aggrieved by the order dated 11.06.2013 in lA.No.934 of 2O12in AS.No.58 of 2012on thefileof theCourtof the lAdditional District Court at Mahabubnagar. Between:

1. Gaddameedi Golla Balaiah, S/o. Gopana, (died) aged 56 years, Occ: Agriculture, r/o. Near Chowdamma, Gudi, Veeranapet Street, Mahabubnagar Town and District.

2. J. Srinivasulu, S/o, Gaddameedi Golla Balalah, aged 49 years, Occ: Auto Driver,

3. J. Ramanjaneyulu, S/o. Late Gaddameedi Golla Balaiah, aged 39 years, Occ: Labour

4. J. Gopikrishna S/o. Gaddameedi Golla Balaiah, aged 35 years, Occ: Hamali AII are R/o. H.No.3-13-62/5, Veerannapet Street, lvlahaboobnagar Town & District.

(Petitioners 2 to 4 are brought on record as LRs of the deceased P1 as per court order dated 26'1 1'2021'^''o:I3;'#'30*'lL"=r,r,o".*,oppELLANr AND

1. Gangaraj Krishnaiah, S/o. Sayanna, (died) aged 60 years, Occ: Agriculture. Fyo. H. No.1-8-97/3/A, Tirmaldev Gutla, lVlahabubnagar Town and District.

2. Gangaaj Srinivas, S/o. Late Gangaraj Krishnaiah, aged 45 years,

3. Gangaraj Yadaiah, S/o. Late Gangaraj Krishnarah, aged 40 years,

4. Gangaraj Vishwanath, S/o. Late Gangaraj Krishnaiah, aged 35 years,

5. Gangaraj Ramesh, S/o. Late Gangaraj Krishnaiah, All are Rio. 1-8-97131A, Tirmaldev Gutta, l\,4ahabubnagar Town & Distract (RR2 to 5 are brought on record as LRs ofthe deceased Rl as per Court order dated 26 "t 1'2021'1#!83,frl ER'islRESpoNDENrs/RESpoNDENrs CRPMP. NO: 6637 OF 2013 Petition under Section 151 CPC praying that in the circumstances stated in the affidavjt filed therewith, the High Court may be pleased to suspend the operation of order dated 1 1 .06.2013 in lA.No.934 ot 2012 in AS.No.58 of 2012 on the file of the court of the I Additional District Court at Mahabubnagar. Counsel for the Petitioner: M/S. N. USHA KIRAN Counsel for the Respondent Nos.3, 4 & 5: SRI K. CHAITANYA The Court made the following: OROER

L HON'BLE SMT.JUSTICE P.SREE SUDIIA CIVIL SION PETITION No.4846 of 2013

ORDER

1.

This Revision is directed against the order dated 11.06.2013 passed in I.A.No.934 of 2012 in A.S.No 58 of 2Ol2 ot the file of the learned I Additional District Court, Mahabubnagar, whereby dismissing the application filed by the petitioner-plaintiff to receive the enclosed documents as additional evidence. 2.

The petitioner filed an application under Order 41 Rule 27 CPC to receive the enclosed documents as additional evidence in the pending appeal being A.S.No.58 of 2012. The respondent herein filed a suit in O.S.No.No.S8 of 2OO7 in the Court of I Additional Senior Civil Judge (mC), Mahabubnagar, seeking perpetual injunction restraining the petitioner herein and his men from interfering with the suit schedule propert-v. The said suit was decreed with costs by order dated 01.06.2010. Aggrieved by the same, the petitioner preferred the above appeal. Pending appeal, he filed the present application, which was dismissed. 3.

Learned counsel for the petitioner would contend that the Appellate Court failed to appreciate the relevaicy of the evidence sought to be produced as additional evidence. He would further contend that the spirit and substance of Order 41 Rule 27 CPC where the petitioner has made out sufficient cause for his nonproduction of the documents in the suit and that the documents sought to be produced in the appeal are misplaced due to the illhealth of the petitioner and after recovery from his illness' the petitioner had found the documents at his home, which are I

essential to prove his possession over the suit schedule property, and filed the present application pending the appeal. +.

Admittedly, it is a suit for injunction and the possession is to be established by the respective parties and the trial Court in its judgment observed that after considering the oral and documentary evidence the plaintiff is in possession and enjoyment over the suit land for the years 1992-93, 2OO4'2OOS and the certified copy of extract of record of rights would also show that the plaintiff is the pattadar oI the land and therefore came to the conclusion that the plaintiff proved his possession and enjoyment over the suit lands and granted the relief. Whereas the documents sought to be filed by the petitioner herein are certified copies of pahanies and some of which are attested copies, but the Court below did not consider and as such now he wanted to file lhose documents to demonstrate that he was in continuous possession.

The petitioner herein on the one hand contends that the documents which are sought to be included as additional evidence are essential for effective and complete disposal of the appeal and on the other hand the respondent would contend that Exs A1, A3 to A l 4 clearly establish his possession 5.

Now the point to be delermined by this Court is whether the appellate Court disposed of the application under Order 41 Rule 27 in a proper persPective.

6.

It is the case of the petitioner herein that the concerned documents were misplaced by him at home and could not be found and produced before the lower Court due to his illness The petitioner also contend that the interlocutory applications have to

J ,/ be dealt with and disposed of independently and not along with the main appeal. In this regard, he placed a judgement of this Court in KARTYAKANTI GOPI V/s. K.RAMESHT wherein it was held as follows:

"7. Whtte disposing of the application filed under Order 41, Rule 27 CPC for receiuing additional euidence, the appellate Court has to consider uhether those documents are ,eiesrury for effectiuely and completely disposing of the appeal before it. For that purpose, it is essentiaL to hear the appeal together utith the additional euidence application. Untess the said procedure is adopted, the appellate Court maA not be in a posttion to coffectlv appreciate as to tuhether the d.ocunents are to be receiued as additional euidence in the appeal and necessary for disposing of the appeal.', "10. ... Since the appellate Court fatted to dispose of the additional euidence pet{tion as uell as the CMA simultaneously in accordance Luith latD, the decision rendered by the first Appellate Court being not legal and contrary to the estabtished procedure is liable to be set aside tn these reuisions. "

7.

In the above case law this Court observed that the appellant has provided reasons for his inability in producing the said documents at an earlier stage. Order 21, Rule 27(1)(aa) CpC provides for the parties to file additional evidence at the stage of appeal on one of two grounds after the exercise of due diligence. Firstly, if the concerned evidence was not within the knowledge of the party and secondly, after application of due diligence, they could not produce it when the decree appealed against was passed. 8.

In the instant case, the appellate Court dismissed the application saying that the petitioner herein obtained all the documents prior to pronouncement of the judgment in the suit. Il at all the petitioner is so desirous to file those documents, he can do so during the pendency of the suit. But the appellate Court lose '20rz 121 aLo ::o

sight of the fact that while disposing of the application filed under Order 41 Rule 27 CPC for receiving additional evidence, it has to consider whether those documents are necessary for effectively and completely disposing of the appeal before it, for which it is essential to hear the appeal together with the additional evidence application and unless,the same is adopted, the appellate Court may not be in a position to correctly appreciate as to whether the documents are to be received as additional evidence in the appeal. Therefore, the approach of the appellate Court in dismissing the application is contrary to the established procedure, and as such, it is liable to be set aside.

9.

Accordingly, the Civil Revision Petition is allowed and the order dated 11.06.2013 passed in I-A.No.934 of 2Ol2 in A.S.No.58 of 2012 on the file of the learned I Additional District Court, Mahabubnagar, is setting aside.

10. Miscellaneous Petitions, if any, pending in this appeal shall stand closed in the light of this final order. SD/.K.AM MAJI ASSISTANT REGISTRAR Note: Name of the Counsel for the petitioner Was substituted as per letter of the Counsel For the Petitioner dated 15.03.2022 SD/.K.AMMAJI ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To, The I Additional District Judge, Ir/ahabubnagar. 1.

One CC to l\,,l/s_ N. Usha Kiran, Advocate IOPUC] One CC to Sri K. Chaitanya, Advocate [OpUC] Two CD Copies One Spare Copy 2.

3.

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HIGH COURT DATED: 3,,11121202'l s 1 HE S;X o ^ o O 24 t4Ai'2l,22 .;

AMENDED ORDER CRP.No.4846 of 20'13 ALLOWING THE CRP O I