@JUDGMENTTAG-ORDER
S. Tamilvanan, J.@mdashHeard the learned Counsel appearing for the Petitioner as well as the learned Counsel appearing for the Respondents.
2. Challenging the order dated 26.03.2010 made in I.A. No. 6 of 2010 in A.S. No. 102 of 2009 on the file of Principal District Judge, Villupuram, this revision has been preferred by the Petitioner herein.
3. It is seen that the petition was filed before the court below under Order 41, Rule 27 of CPC seeking an order to mark additional document before the appellate court in the aforesaid appeal and the same was dismissed by the appellate court. It is not in dispute that the appeal is pending before the court below.
4. The learned Counsel appearing for the Petitioner drew the attention of this Court to Order 41 Rule 27 CPC which reads as follows:
27. Production of additional evidence in Appellate Court.
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or ((aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or) (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
5. Further, the learned Counsel appearing for the Petitioner relied on the decision reported in
6. In that view of the matter and without going into the merits as to whether the application under Order 41 Rule 27 of the CPC was rightly rejected by the appellate court as well as by the High Court, we set aside the order of the High Court as well as of the appellate court rejecting the application under Order 41 Rule 27 of the CPC and we direct that the appellate court shall decide the pending appeal along with the application under Order 41 Rule 27 of the CPC on merits within a period of three months from the date of supply of a copy of this order to the appellate court. The appeal is allowed to the extent indicated above. There will be no order as to costs.
6. It is not in dispute that evidence could be adduced before the appellate court, however, while allowing such petition, the appellate court should give reasons for allowing the petition. It cannot be a matter of right for the Petitioner to produce any document at the appellate stage. However if it is a vital document to decide the lis, in the interest of justice by explaining the reason for non production of such document before the Trial Court, Order 41 Rule 27 of CPC could be invoked by the appellate court, permitting the Petitioner to mark the document.
7. In the light of the above decision rendered by the Hon''ble Apex Court, the court below could have considered the petition filed under Order 41 Rule 27 of CPC along with the appeal, but, the impugned order was passed separately, by the appellate court. Learned Counsel appearing for the Petitioner expressed his views on the aforesaid facts and circumstances that the court below could have decided the petition along with the appeal for which there is no tenable objection from the learned Counsel for the Respondents. Hence, to meet the ends of justice, I find it just and reasonable to allow this revision petition and set aside the impugned order dated 26.03.2010 passed in I.A. No. 6 of 2010 in A.S. No. 102 of 2009 on the file of Principal District Judge, Villupuram and the court below is directed to restore the I.A. No. 6 of 2010 in A.S. No. 102 of 2009 and dispose the same, solely on merits and uninfluenced by the findings if any in this revision along with the appeal within a period of two months from the date of receipt of a copy of this order. No order as to costs. Consequently, connected M.P. is closed.
