Decided on December 14,2018

Jiyan Ali Appellant
Julmat Ali And 7 Ors Respondents


Prasanta Kumar Deka, J. - (1.) Heard Mr. R. De, the learned counsel appearing on behalf of the petitioner. Also heard Mr. A. R. Sikdar, the learned counsel for the respondents.
(2.) The present petitioner is the defendant in Title Suit No.316/2010 filed by the present respondents in the Court of the learned Munsiff No.1, Barpeta. The said suit was decreed and thereafter, the present petitioner preferred Title Appeal No.39/2014 in the Court of the learned Civil Judge, Barpeta. Along with the said appeal challenging the judgment and decree of the learned trial court, an application under Order XLI Rule 27 Code of Civil Procedure, 1908 (CPC) was also filed which was registered as petition No.604/2015. In the said petition, it is contended by the petitioner that there were anomalies in the revenue records which could not be detected at the time of adducing evidence by the petitioner as the defendant in the suit. Subsequently, it came to the knowledge and as such, sought for examination of the Revenue Officer of the Office of the Deputy Commissioner, Barpeta and the concerned Circle Officer of the Barpeta Revenue Circle along with the draft chitha etc. Without going into the merit of the grounds prima facie it seems that the petitioner filed the application under Order XLI Rule 27 (1)(aa) of the CPC. The learned first appellate court before taking up the appeal for its final disposal decided the said petition No. 604/2015 rejecting the same vide order dated 29/08/2015. The said rejection order is impugned in this revision petition. Whether such decision on the application without hearing the appeal for its final disposal is proper or not?
(3.) The appellate court has the power to allow evidence. But before allowing to adduce additional evidence the appellate court must be satisfied that such evidence is required to enable the appellate court to pronounce the judgment in the appeal. To assess such requirements the appellate court is bound to hear the appeal at length and then only it can assess such requirements. The requirement of hearing the appeal and reasons behind it is explained by the Hon'ble Apex Court in Union of India vs. Ibrahim Uddin reported in, 2012 8 SCC 148 which is reproduced below:- "52. Thus, from the above, it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of the final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.";

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