IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TWENTY FIFTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5297 of 2010 BETWEEN Md. Yousufuddin. ... PETITIONER AND Md. Masiuddin and twelve others. ...RESPONDENTS Counsel for the Petitioner: MR. M. RAJAMALLA REDDY Counsel for the Respondents: MR. T.V. KALYAN SINGH The Court made the following: ORDER: Heard both sides. 2. The petitioner’s application being I.A.No.829 of 2010 in A.S.No.41 of 2006 filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 seeking permission to produce additional evidence was rejected by the lower appellate Court by order dated 01.10.2010 and the same is questioned in this revision. 3. The aforesaid appeal is said to be still pending. Evidently, the lower appellate Court has taken up and decided the application for additional evidence separately ahead of the hearing of the appeal itself. It is well-settled that the application for additional evidence has to be considered along with the appeal itself inasmuch as only at that time the lower appellate Court would be able to be appreciate the relevancy of the evidence sought to be produced as additional evidence and the lower appellate Court would also be in a position to decide on the question as to whether the petitioner satisfies the ingredients of Order 41 Rule 27 CPC. The Hon’ble Supreme Court in STATE OF RAJASTHAN v. T.N. SAHANI[1] held as under: “…So the application under Order 41 Rule 27 should have been decided along with the appeal. Had the Court found the documents necessary to pronounce the judgment in the appeal in a more satisfactory manner it would have allowed the same; if not, the same would have been dismissed at that stage. But taking a view on the application before hearing of the appeal, in our view, would be inappropriate. Further the reason given for dismissal of the application is untenable. The order under challenge cannot, therefore, be sustained. It is accordingly set aside. The application is restored to its file…” Following the aforesaid decision, I had disposed of CRP.No.814 of 2008 dated 21.10.2008. 4. In view of the above, therefore, without going into the merits of the additional evidence and its relevancy, the impugned order is set aside. The application I.A.No.829 of 2010 shall stand restored and shall be considered by the lower appellate Court along with the appeal and the lower appellate Court shall also pass appropriate orders in the appeal either accepting or rejecting the additional evidence depending upon its satisfaction with regard to Order 41 Rule 27 CPC as well as the relevancy of the additional evidence now sought to be produced. 5. I find from the last sentence in para 9 of the impugned order that the learned appellate Judge has rejected the aforesaid application for additional evidence on the ground of delay as well as on merits and it would not be in the interest of justice to remit the matter to the same learned Judge in view of the opinion expressed by him already. I, therefore, deem it appropriate to transfer the appeal A.S.No.41 of 2006 along with I.A.No.829 of 2010 to the learned District Judge, Nizamabad, for reconsideration and determination afresh. Since the appeal is of the year 2006, the learned District Judge, Nizamabad, would hear and decide the appeal as expeditiously as possible. The civil revision petition is accordingly disposed of. There shall be no order as to costs. _____________________ VILAS V. AFZULPURKAR, J February 25, 2011 Note: LR Copy to be marked (B/o) DSK [1] (2001) 10 SCC 619