P.D. SHRIYALA DEVI Vs. D.B. VIKRAMARAJA

JUDGEMENT

(1.) Heard the learned counsel for the appellant and the learned counsel for respondent Nos.1(a) and (b).

(2.) This appeal is filed challenging the judgment and decree dtd. 24/11/2006, passed in R.A.No.39/2006, on the file of the Civil Judge (Sr.Dn.) and JMFC, Nagamangala. The Trial Court dismissed the suit on the ground that the plaintiff has not examined the attesting witness of the Will and hence an appeal was filed in R.A.No.39/2006 and while filing the appeal, an application was also filed under Order 41 Rule 27 of CPC and the Appellate Court dismissed the appeal and the application. Hence, the present second appeal is filed before this Court.

(3.) The learned counsel for the appellant would contend that the dispute between the parties will be adjudicated by examining the attesting witness and when a prayer is made before the Appellate Court to permit the appellant to lead oral evidence by examining the attesting witness, the same has not been considered and the order impugned requires interference. The learned counsel in support of his arguments relied upon the judgment of the Apex Court in the case of THE MUNICIPAL CORPORATION OF GREATER BOMBAY v. LALA PANCHAM AND OTHERS reported in AIR 1965 SC 1008, wherein it is held that under Order 41 Rule 27 of CPC, the Appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the Appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the Appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the Appellant Court is empowered to admit additional evidence. The power under clause (b) of sub-Rule (1) of Rule 27 of Order 41 cannot be exercised for adding to the evidence already on record except upon one of the grounds specified in the provision. If the documents on record are relevant on the issue of fraud the Court could well proceed to consider them and decide the issue. But the Appellate Court cannot order a fresh trial. Such a course is not permissible under Order 41 Rule 27 of CPC. Hence, the learned counsel prays this Court to set aside the order of the First Appellate Court in rejecting the application filed under Order 41 Rule 27 of CPC.