M SHANMUGHASUNDARAM Vs. N T P SUBBURAYA CHETTIAR

JUDGEMENT

(1.) BY consent of both the counsel, the revision is taken up for final disposal.

(2.) THE revision has been filed by the petitioner against the order of the Appellate Authority in I. A. No. 100 of 1994 in R. C. A. No. 7 of 1993 wherein additional evidence has been permitted. THE only objection raised by the counsel for the petitioner is that in view of the judgment of a Division bench of this Court reported in M. Ayyasami v. S. P. Ganesan, 1994 (2) L. W. 376, the application filed under O. 41, Rule 27 seeking permission to adduce additional evidence cannot be disposed of independently and the said application has to be taken up along with the appeal. THE lower court is not correct in disposing of the application independently. In fact the objection is well founded. THE Division Bench, in Ayyaswami's case, 1994 (2) L. W. 376, has held as follows: "it is settled position of law that an application filed in the appeal for permission to adduce additional evidence has to be considered along with the main appeal and not separately. THE Privy Council has considered this question in Kessowji v. G. I. P. Railway, L. R. 34 I. A. 115: i. L. R. 31 Bom. 381:17 M. L. J. 347 and has again reiterated the same view in parsotim v. Lal Mohan, L. R. 58 I. A. 254: A. I. R. 1931 P. C. 143:34 L. W. 76 (P. C. ). THE Supreme Court in Arjun Singh v. Kartar Singh, AIR 1951 S. C. 193: 64 L. W. 537 after referring to the aforesaid decisions, has held that without examination of the evidence on record, and without a decision is reached that the evidence as it stood disclosed a lacuna which the court require to be filed up for pronouncing its judgment, the appellate court would not be justified in admitting the additional evidence under O. 41, Rule 27, Civil Procedure Code. THE relevant portion of the judgment of the Supreme Court as follows: "the .