ORDER 26 RULE 9 ORDER 41 RULE 27-Whether an application under order 26 Rule 9 be treated as an additional evidence as contemplated under Order 41 Rule 27 CPC-HELD-Order 26 Rule 9 would deal with commission to make local investigation. It would contemplate that wherever the Court is unsure about the factual aspect of the matter and is of the opinion that a local investigation is required to be done for the proper purpose of elucidating any matter in dispute, it may appoint a commission. Order 41 Rule 27 of CPC is in respect of powers of the appellate Court wherein certain additional evidence is produced and at what stage and in what circumstance the said additional evidence is to be accepted. It is no doubt true that under Order 41 Rule 27 of CPC would certainly contemplate that whenever an evidence is produced in trial Court and for no justifiable reason the same is rejected by the trial Court, the same shall be taken as additional evidence in the appellate Court and more important is the party who seeks to produce additional evidence would satisfy that the said additional evidence was not available with the party in spite of due diligence the same could not be produced in the trial Court, the same shall be accepted. Apparently Order 41 Rule 27 of CPC would come into play when the evidence is sought to be produced during the course of the proceedings at appellate stage. In the case on hand the evidence of the Commissioner has not as yet come on record. What has been done in the appellate Court is only an application is filed for appointment of a Commissioner so as to make a local inspection of the suit property and the factual aspect of the matter. When the report is filed by the Commissioner on the basis of the local inspection that would partake the character of an additional evidence which necessarily will have to be considered along with the main appeal. If the contention of the petitioner is accepted this would be something like putting the cart before the horse, in as much as, the evidence is not there before the Court. It is only after the report is placed before the Court, it would partake the character of an additional evidence which, will have to be considered along with the main appeal.
Petition dismissed.
ORDER
Ajit J. Gunjal, J.
1. This petition is by the respondents in RA 52/90. The respondent herein is the appellant in the said R.A. and also the plaintiff in the suit. Suit in O.S. No. 121/88 is filed by the respondent in the trial Court seeking a relief of declaration and consequential relief of permanent injunction against the petitioners who are the defendants in respect of plaint ‘B’ schedule properties. After due contest, the said suit was decreed in part. The respondent aggrieved by the said judgment and decree has filed an appeal in RA 52/90 on the file of the Prl. Civil Judge (Senior Division) Udupi. The bone of contention between the parties appears to be a certain strip of land where certain trees are situate of which the respondent claims to be the owner. During the pendency of the suit, a sketch Ex.P. 7 was marked. The learned trial Judge was of the opinion that in the absence of the Commissioner’s report, Ex.P. 7 cannot be looked into nor acted upon. This observation made by the learned trial Judge prompted respondent to file an application I.A. 2 under Order 26 Rule 9 of CPC for appointment of a Commissioner so as to demarcrate the land and to show where actually the trees are situate. The said application was seriously opposed by the petitioners herein on several grounds. It was submitted before the learned appellate Judge that the application is filed after a lapse of nearly four years. It was also submitted that by filing this application for appointment of a Commissioner it would amount to procuring of additional evidence as contemplated under Order 41 Rule 27 of CPC. In the absence of any justifiable ground for production of additional evidence, the application under Order 26 Rule 9 of CPC cannot be entertained. The sum and substance would be that the Commissioner’s report will have to be treated as additional evidence and unless justifiable grounds are made out in the application incorporating the ingredients of Order 41 Rule 27(1)(aa) the present application is not maintainable. The learned trial Judge has accepted the application for appointment of Commissioner. The learned appellate Judge is also aware that the application under Order 26 Rule 9 for appointment of a Commissioner can be treated as additional evidence, but however was of the opinion that the appeal is a continuation of the suit and the provisions which are applicable to suit are also applicable to appeal. The learned appellate Judge was also of the opinion that this is a fit case where the application is to be granted. In so far as report of the Commissioner is concerned, the learned appellate Judge was also alive to the situation that it cannot be considered at the there should but will have to be considered at the final disposal of the appeal. The impugned order passed by the appellate Court is produced at Annexure-A.
2. Mr. Sampath Anand Shetty, learned counsel appearing for the petitioner reiterated what was submitted before the learned appellate Judge. He would once again emphasise that unless the ingredients of Order 41 Rule 27(1) (aa) are satisfied, the question of entertaining an application under Order 26 Rule 9 is impermissible. He would further submit that in the grounds of memorandum of appeal, the respondent had clearly stated that non-examination of the person who measured the property is fatal and that the suit sketch was produced at Ex.P.7. The sum and substance is that on the basis of these two grounds he would submit that the respondent was aware as to why this Ex.P.7 was not considered by the learned trial Judge. In these circumstances, he submits that it cannot be said that despite exercise of due diligence, the Commissioner could not be appointed. To buttress his contention he has relied on a judgment of this Court reported in Ghaleppa By Lrs and Ors. v. Gundeppa By Lrs., 1981 (1)K.L.J. p. 401 and a decision reported in Pappayee Ammal v. Subbulakshmi Ammal and Anr., .
3. Mr. Santosh Mane for Mr. A. Ananda Shetty, learned counsel appearing for the respondent would support the order passed by the learned trial Judge.
4. I have given my anxious consideration to the rival submissions of both the Counsel.
5. The point which would fall consideration is whether an application under Order 26 Rule 9 of CPC would be treated as an additional evidence as contemplated under Order 41 Rule 27 of CPC?
6. Order 26 of CPC would deal with commission. Order 26 Rule 9 would deal with commission to make local investigation. It would contemplate that wherever the Court in unsure about the factual aspect of the matter and is of the opinion that a local investigation is required to be done for the proper purpose of elucidating any matter in dispute, it may appoint a commission. Order 41 Rule 27 of CPC is in respect of powers of the Appellate Court wherein certain additional evidence is produced and at what stage and in what circumstance the said additional evidence is to be accepted. It is no doubt true that under Order 41 Rule 27 of CPC would certainly contemplate that whenever an evidence is produced in trial Court and for no juristifiable reason the same is rejected by the trial Court, the same shall be taken as additional evidence in the appellate Court and more important is the party who seeks to produce additional evidence would satisfy that the said additional evidence was not available with the party in spite of due diligence the same could not be produced in the trial Court, the same shall be accepted. Apparently Order 41 Rule 27 of CPC would come into play when the evidence is sought to be produced during the course of the proceedings at appellate stage. In the case on hand the evidence of the Commissioner has not as yet come on record. What has been done in the Appellate Court is only an application is filed for appointment of a Commissioner so as to make a local inspection of the suit property and the factual aspect of the matter. When the report is filed by the Commissioner on the basis of the local inspection that would partake the character of an additional evidence which necessarily will have to be considered along with the main appeal. If the contention of Mr. Sampath Anand Shetty is to be accepted this would something like putting the cart before the horse, inasmuch as, the evidence is not there before the Court. It is only after the report is placed before the Court, it would partake the character of an additional evidence which, as stated above, will have to be considered along with the main appeal.
7. In so far as the decisions which are relied on by the learned Counsel appearing for the petitioners, they are of no assistance to him. In fact both the decisions would deal in respect of at what stage additional evidence is to be considered and what are the parameters in accepting the additional evidence under Order 41 Rule 27 of Code. It is only after the ingredients of Order 41 Rule 27 of the Code are satisfied the additional evidence can be taken on record. That is what has been done in the present case.
8. Consequently, I do not find any merit in this petition. Petition stands dismissed.