LexK.R. MOHAN REDDY versus M/S NET WORK INC. REP. TR. M.D.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A
K.R. MOHAN REDDY
v.
MIS NET WORK INC. REP. TR. M.D.
SEPTEMBER 26, 2007 .
B
[S.B. SINHA AND H.S. BEDI, JJ.]
Code of Civil Procedure, J 908:
C
Or. 41, rr. 27(1)(aa) and (b)-Applicaiionfor adducing additional
evidence at appellate stage-No notice issued to opposite party-
Application taken up by High Court at the time of hearing of the
appeal-High Court holding that the "application should be allowed,
the same being a requirement of court and/or was otherwise for
D substantial cause "-HELD: High Court failed to apply provisions of
Or. 41, r.27 in its correct perspective-It proceeded on the basis as if
clause (b) of r.27(1) was applicable-Condition precedent for
application of clause (aa) of sub-rule (1) of r.27 is d~fferentfrom that
of clause (b)-Judgment of High Court set aside-Application would
E be disposed of in accordance with law after parties exchange affidavits
as directed in the judgment.
The respondent firm filed a suit against the appellant for
recovery of certain amount. The case of the plaintiff-respondent was
that the parties entered into a partnership. The said partnership was
F reconstituted, and thereupon the defendant appellant handed over
certain works to the respondent firm for execution. Though the
appellant had retired as a partner from the said firm, he requested
the respondent firm to continue the work allotted in his name. The
work was executed by the respondent firm and the appellant issued
G a cheque in favour of the respondent firm, but the same was
dishonoured. The plea of the defendant-appellant was that he had
already retired from the firm; all the accounts between the parties
had been comprehensively settled and the cheque was obtained by
fraud and forgery. The trial court without framing a specific issue
H
872
K.R. MOHAN REDDY v. M/SNETWORKINC.REP. TR.MD. 873
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whether the cheque was an outcome offraud and forgery, dismissed A
the suit. In the appeal the plaintiff-respondent firm filed an
application under Order 41 Rule 27 for adducing additional evidence.
The appellate court issued no notice to the said application which
came to be considered along with the hearing of the appeal itself.
The appellate court, ultimately held by the impugned judgment that B
the application for adducing additional evidence filed by the plaintiff
should be allowed, the same being a requirement of the Court and/
or was otherwise for substantial cause.
In the instant appeal filed by the defendant it was contended c
that the application of the plaintiff-respondent was based on clause
( aa) of Rule 27(1) of Order 41 and the High Court committed an error
in relying upon clause {b) of Rule 27(1); and that the High Court,
prior to passing of the order, did not give any opportunity to the
appellant to file an objection.with regard to maintainability of the
D
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said application.
~
Disposing of the appeal, the Court
HELD: 1. The High Court failed to apply the provisions of Order
41Rule27 CPC in its correct perspective. It proceeded on the basis
E
as if clause (b) of Sub-rule (1) of Rule 27 of Order 41 ofCPC was
applicable. Power of the appellate court to pass any order thereunder
is limited. It is now a trite law that the condition precedent for
\;·
application of clause (aa) of Sub-rule (1) of Rule 27 of Order 41 is
. "
different from that of clause (b). In the event the former is to be
applied, it would be for the applicant to show that the ingredients or F
conditions precedent mentioned therein are satisfied. On the other
hand, if clause (b) to Sub-rule (1) of Rule 27 of Order 41 CPC is to
be taken recourse to, the appellate Court was bound to consider the
entire evidences on record and come to an independent finding for
f ·
arriving at a just decision that adduction of additional evidence as G
has been prayed by the appellant was necessary. The fact that the
High Court failed to do so, amounts to misdirection in law.
[Paras 15, 17, 18 and 19) [877-E, H, F; 878-A-D)
State ofGujaratv. Mhendrakwnar Parshottambhai Desai (dead) H
874
SUPREME COURT REPORTS
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[2007] 10 S.C.R.
·
A by LRs. (2006] 9 SCC 772, relied on.
1.2. An appellate court should not pass an order so as to patch
up the weakness of the evidence of the unsuccessful party before
the trial court, but it will be different if the Court itselfreqtiires the
evidence to do justice between the parties. The ability to pronounce
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