IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH OCTOBER 2011 / 3RD KARTHIKA 1933 OP(C).No. 3354 of 2011(O) ------------------------------------- [OS.NO.178/2008 OF ADDITIONAL DISTRICT COURT, IRINJALAKUDA] .................... PETITIONER: ------------------- AKHILESWARAN, AGED 66, S/O.VELAPPAN, MANAKATTIL HOUSE, ALOOR VILLAGE, VELLANCHIRA DESOM, MUKUNDAPURAM TALUK. BY ADVS. SRI.G.SREEKUMAR (CHELUR), SRI.K.RAVI (PARIYARATH) RESPONDENT: ---------------------- SUNIL, S/O.KOLATHAPPILLY VEETTIL CHANDRAN, MURIYAD VILLAGE DESOM, MUKUNDAPURAM TALUK, PIN-680 001. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 25/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.3354/2011-O: APPENDIX PETITIONER'S EXHIBITS:- EXT.P1 A TRUE COPY OF THE JUDGEMENT IN OS.380/05 DATED 18/2/08 ON THE FILE OF THE SUB COURT, IRINJALAKUDA. EXT.P2 A TRUE COPY OF THE IA.3441/2010 IN AS.178/08 ON THE FILE OF THE ADDL. DISTRICT COURT, IRINJALAKUDA DATED 16/8/2010. EXT.P3 A TRUE COPY OF THE DISPUTED PROMISSORY NOTE ALLEGEDLY DATED 10/1/04. EXT.P4 A TRUE COPY OF THE ORDER PASSED BY THE ADDL. DISTRICT COURT, IRINJALAKUDA IN IA.3441/2010 IN AS.178/08 DATED 5/9/2011. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.3354 of 2011 -------------------------------------- Dated this the 25th day of October, 2011. JUDGMENT Respondent though served through special messenger, there is no response. 2. Defendant in O.S.No.380 of 2005 of the court of learned Additional Sub Judge, Irinjalakkuda and the appellant in A.S.No.178 of 2008 of the court of learned Additional District Judge, Irinjalakkuda is the petitioner before me challenging Ext.P4, order dated 05.09.2011 on I.A.No.3441 of 2010 in A.S.No.178 of 2008. Respondent obtained a decree for money against petitioner. Petitioner challenged that judgment and decree in A.S.No.178 of 2008. The suit was based on a demand promissory note regarding which petitioner has raised certain contentions in the trial court which the trial court negatived. According to the petitioner the trial court has made certain observations against failure of petitioner to take steps to send the disputed document to the expert for opinion. In view of that, petitioner filed I.A.No.3441 of 2010 in the appeal requesting the learned Additional District Judge to send the disputed document to the expert for opinion. That application was opposed by the respondent. Learned Additional District Judge by Ext.P4, order dismissed the application (I.A.No.3441 of 2010). 3. Learned counsel contended that petitioner, in the circumstances stated in Rule 27 of Order XLI of the Code of Civil Procedure (for short, “the Code”) is entitled to adduce additional evidence in the appeal as well and for a OP(C)No.3354/2011 2 just and fair decision of the dispute it was necessary that the document was sent to the expert. 4. I need not go into the merit of the contention raised by the petitioner, for, Ext.P4 cannot otherwise be sustained. The reason is that when a request for reception of additional evidence is made in the appeal the application in the normal course has to be heard along with appeal. The Supreme Court in Malayalam Plantations Ltd. v. State of Kerala (2010 (4) KLT 647) referring to the earlier decisions has held that if any application is filed under Rule 27 of Order XLI of the Code in the appeal it is incumbent on the part of the appellate court to consider it “at the time of hearing the appeal” on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved . Certainly the attempt of petitioner was to adduce additional evidence in the appeal by way of expert opinion on the disputed document. That application ought to have been heard and disposed of by the learned Additional District Judge while deciding the appeal on merit. The decision on I.A.No.3441 of 2010 therefore is premature. That application ought to have been heard along with the appeal on merit. OP(C)No.3354/2011 3 Resultantly this Original Petition is allowed. Ext.P4, order is set aside without expressing any opinion as to whether the request made in I.A.No.3441 of 2010 is allowable or not. Learned Additional District Judge is directed to dispose of that application on merit while deciding the appeal. THOMAS P.JOSEPH, Judge. cks