Decided on November 14,2006

Gh Hassan Tantry Appellant
Manzoor Ahmad Wani Respondents


- (1.) THIS revision petition is directed against the order dated 22 -6 -2006 passed by Additional District Judge, Srinagar in appeal titled Manzoor Ahmad Wani Vs. State of J&K & ors. allowing the appellant to adduce additional evidence before the appellate court. Heard - - Considered.
(2.) THE short controversy involved in this petition is whether the appellate court has rightly passed the impugned order and whether it can be assailed at this stage? In order to understand the real controversy in issue, brief facts of the case are required to be noticed.
(3.) MANZOOR Ahmad, respondent no. 1 -plaintiff had filed a suit for declaration and injunction against the petitioner and respondents 2 to 7 before the trial court which came to be dismissed vide judgement and decree dated 1 -8 -2005. Feeling aggrieved by the said judgement and decree, respondent -plaintiff herein preferred an appeal before the Pr. District Sessions Judge. Srinagar which came to be transferred to the court of 1st Additional District Judge. Srinagar. During the pendency of the appeal, Manzoor Ahmad -respondent/plaintiff filed an application in terms of Order 41 Rule 27 CPC for allowing him to adduce additional evidence on the grounds taken in the application. The first appellate court after examining the entire record, allowed the application with the observation that the additional evidence will enable it to adjudicate upon the matter more effectively and conclusively. The relevant para of the order impugned in this petition reads thus: ".......At this stage the photo copies of the official record which the applicant/respondent wants to prove through additional evidence cannot be presumed to be incorrect and cannot be brushed aside as these two documents can render the real and true assistance to this court in reaching to a just and proper conclusion. The documents to be produced and the witnesses to be examined as prayed for in this application will enable this court to pronounce judgement effectively and conclusively. In case this application is not allowed, it will result in miscarriage of justice because the appellant/applicant will not be able to place before this court the evidence which appear to have a direct bearing on the merits of the case. In my consideration opinion, this court has ample discretion to receive evidence as prayed for in the application under Rule 27 of Order 41 CPC as the said evidence will not in any way fill up any lacuna in the case but will help the court in deciding the matter in appeal conclusively." It appears that the 1st appellate court after examining the record came to the conclusion that additional evidence is required in the matter as that will enable it to decide the matter effectively and completely. This discretion came to be exercised when appeal is still pending. The crucial question is whether the impugned order could be challenged by way of revision petition? I am of the considered view that the discretion exercised by the 1st appellate court is not open to challenge and could not be assailed at this stage, because entire matter is before the appellate court and it was for the appellate court to decide the application one way or the other and the affected party could challenge the said finding in the second appeal, if required to be filed by that party. Any error, detect or irregularity affecting the decision of the court could be set as a ground of attack/objection in the memorandum of appeal. By no stretch of imagination, the revision will lie at this stage and this court can not interfere with the impugned order at this stage. The apex court in case titled Mahavir Singh & Ors. Vs. Naresh Chandra, AIR 2001 SC 134, has observed that granting or refusing of an application in terms of Order 41 Rule 27 CPC could not be interfered with by the High Court in revision petition and the revision is not competent. It is profitable to reproduce para 5 of the judgement hereunder: - - "........We fail to understand as to how the how the High Court could, in exercise of its power under section 115 CPC could have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgement the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order XLI, Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115, CPC. In this regard, we may notice the decision of this Court in Gurdev Singh V. Mehnga Ram (1997) 6 SCC 507, in which the scope of exercise of power under Section 115 CPC on an order passed in an application filed under Order XLI, Rule 27, CPC was considered. When this decision was cited before the high Court the same was brushed aside by stating that the principle stated therein is not applicable to the facts of this case. We do not think so. The High Court ought not to have interfered with such an order." ;

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