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 â€"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.â€
4. This is one of the aspects for consideration of the petition for additional evidence by the appellate court at the stage of final hearing of the appeal.
 5. The other aspect is discussed hereinbelow. It is settled by the Hon’ble Apex Court that if an application is allowed for additional evidence the
appellate court is left with two options either to invoke the jurisdiction under Order XLI Rule 23A or under Order XLI Rule 25 of the CPC. If the
appellate court decides to invoke the former option and considers that a re-trial is necessary, then the same may be remanded to the court which
passed the decree under appeal after setting aside the judgment of the said court and may further direct what issue or issues shall be tried. In the
latter option if the first appellate court finds that the trial court omitted to frame or try any issue in order to determine any question of fact which the
appellate court finds essential to the right decision of the suit upon merit, the appellate court may frame issues and refer the same for trial to the court
from whose decree the appeal is preferred and direct such court to take additional evidence and the court shall try such issue and shall return the
evidence to the appellate court together with its findings thereon and the reasons therefor and such findings shall be put on record. Thereafter the
appellate court shall take up for disposal of the appeal after allowing the parties to present memorandum of objection if any. In the mid way before the
appeal is taken up for its final disposal, the learned appellate court cannot set aside the judgment and remand the suit to the trial court and hence, it is
held that an application under Order XLI Rule 27 CPC is to be decided while taking up the appeal for its final disposal. Coupled with the same, the
respondent in the appeal must be given due scope to rebut the said evidence if the appellate court is satisfied that additional evidence is required for
passing judgment in the appeal. If additional evidence is allowed to be adduced in the appeal without allowing the respondent in the appeal to rebut the
same that would be a serious prejudice to the respondent. From that point of view also Order XLI Rule 23-A and Rule 25 are the best options to
invoke by the appellate court.
6. To fortify the aforesaid observations, it would be appropriate to refer the principles laid down by the Hon’ble Apex Court in Corporation of
Madras and Another â€" Vs.- M. Parthasarathy and Others, reported in (2018) 9 SCC 445. Therein the said appeal admittedly the respondents
(plaintiffs) filed an application under Order XLI Rule 27 of the CPC (CMP No.1559/1993) in their first appeals before the first appellate court praying
therein for production of additional evidence in appeals.
7. The said application was allowed and the additional evidence was not only taken on record but also relied on by the appellate court for allowing the
appeals filed by the respondents (plaintiffs), resulting decreeing the suits. While holding such consideration under Order XLI Rule 27 of the CPC to be
jurisdictional errors in allowing the appeals, the Hon’ble Apex Court held as follows:-
“15. Having allowed the CMP No.1559 of 1993 and, in our opinion rightly, the first appellate court had two options, first it could have either set
aside the entire judgment/decree of the trial court by taking recourse to the provisions of Order 41 Rule 23-A of the Code and remanded the case to
the trial court for retrial in the suits so as to enable the parties to adduce oral evidence to prove the additional evidence in accordance with law or
second, it had an option to invoke powers under Order 41 Rule 25 of the Code by retaining the appeals to itself and remitting the case to the trial court
for limited trial on particular issues arising in the case in the light of additional evidence which was taken on record and invite findings of the trial court
on such limited issues to enable the first appellate court to decide the appeals on merits.
16. The first appellate court failed to take not of both the abovementioned provisions and proceeded to allow it wrongly.â€
8. In the present case in hand the said petition under Order 41 Rule 27 CPC was disposed of without considering the appeal on merit which apparently
shows that the first appellate court failed to assess the requirements of the said evidence sought to be introduced by the petitioner. Keeping in view
the totality of the matter, I am of the considered opinion to set aside the impugned order dated 29.08.2015 in T.A. No. 39/2014 pending in the court of
learned Civil Judge, Barpeta which I accordingly do with a direction to consider the same while deciding the appeal for its final disposal on merit. It
would not be out of place to mention here that I have not decided the impugned order on its merit but as the stage in taking up the petition for disposal
is not proper only for that reason it is set aside. The First Appellate Court is at liberty to decide the application under Order XLI Rule 27 CPC filed by
the present petitioner afresh on merit while taking up the appeal for its disposal as per the observations made hereinabove.
9. The parties to this petition shall appear before the Court of the learned Civil Judge, Barpeta in Title Appeal No.39/2014 on 28.01.2019 and on
production of the order passed by this Court, the learned first appellate court shall take up the appeal as per the observation made hereinabove.
10. Interim order passed earlier stands vacated.
11. No costs.
