THE HON’BLE SRI JUSTICE G.CHANDRAIAH C.R.P.NO.5497 OF 2009 O R D E R Heard both the counsel. 2. Aggrieved by the order and decree dated 27.10.2009 passed by the court of District Judge, Nizamabad in I.A.No.2671/2009 in A.S.No.18/ 2009 in dismissing the petition filed by the petitioner under Order 41, Rule 27 read with Section 151 to permit him to produce additional evidence by summoning the witnesses to give evidence by producing the documents. 3. The respondent here filed the suit in O.S.No.98/2004 on the file of Senior Civil Judge, Nizamabad for recovery of an amount of Rs.2,78,150/- with future interest at the rate of 18 per cent per annum and the same was decreed by judgment and decree dated 98/2004. During the pendency of the suit, the defendant filed I.A.No.719/2007 for summoning the witnesses to give evidence mentioned therein along with the original document, the certified copies of which were already filed by him. As the plaintiff contended that the said documents were created, he filed the I.A for summoning the said witnesses to give evidence by producing the documents. The said I.A. was dismissed holding that the certified copies of the said documents can be considered as originals, while considering them as piece of evidence. His further case is that on the contrary, the trial did not consider these documents while decreeing the suit and, therefore, in the appeal he filed the present I.A. 4. On the other hand, the respondents stated that as the conditions stipulated under Order 41 Rule 27 of C.P.C. are not fulfilled, the present documents cannot be received in evidence and sought for dismissal of the I.A. 5. The court below after framing appropriate issue and considering the material on record dismissed the I.A. Hence the revision. 6. The learned counsel appearing for the petitioner submitted that as per the case of the respondent/plaintiff the suit promissory note was executed at Nizamabad, but as on the date of execution of the said document, the petitioner was at Selu taluka of Maharashtra State, which is more than 500 K.Ms. and hence there was no possibility of the petitioner executing the suit promissory note. He stated that the petitioner was working at the municipal office at Sailu on the said date. In order to show that he was not at Nizamabad and was at Selu Taluka at Maharashtra, he earlier filed I.A.No.719/2007 for summoning the witnesses to give evidence by producing the relevant documents, the certified copies of which were already filed. But the trial court dismissed the said I.A. by observing that the said documents can be considered as originals, while considering them as piece of evidence, but on the contrary the suit was dismissed without considering these documents. He submitted that in fact the petitioner has given an amount of Rs.95,315/- to the respondent and the said fact is also stated in the counter and the petitioner has already filed suit against the respondent for recovery of the said amount before the Junior Civil Judge, Sailu, Maharashtra. He stated that if the said witnesses are examined and the relevant documents are produced, it would clinchingly prove that the petitioner was not present at Nizamabad on the date of execution of the suit promissory note and as his I.A. was dismissed observing that the certified copies would be considered as piece of evidence and on the contrary as the same were not considered, he filed the present I.A. before the lower appellate court and in the interest of justice he sought to allow this petition. He also relied on the judgments reported in OFFICIAL LIQUIDATOR v. R.DESIKACHAR[1], SARADA v. MANIKKOTH KOMBRA RAJENDRAN[2], P.S.M.AHAMED ABDUL KHADER v. T.K.MOHAMMED ABUDUCKER[3], JAIUR DEVELOPMENT AUTHORITY v. KAILASHWATI DEVI[4], INDIAN OVERSEAS BANK vs. D.M.VIDVAVATHI[5], SALAM ADVOCATE BAR ASSOCN. V. UNION OF INDIA[6] and JAYADEV TRIPATHY v. DILIP KUMAR PANDA[7]. 7. On the other hand the learned counsel appearing for the respondent supporting the impugned order further submitted that based on the material on record the court below found that there are no grounds to receive the additional evidence and when the lower court found that there are no grounds, this court in the revision cannot interfere with the same. In support of this contention, he relied on the judgment of the Apex Court reported in MAHAVIR SINGH vs. NARESH CHANDRA[8]. Relying on a judgment of a learned single Judge of this court in ENUGUKONDA VENKATA RAGHAVACHARYULU v. PUSHPAGIRI MATTAM[9] he submitted that unless and until the conditions envisaged under clause (a) or (aa) of sub-rule (1) of Rule 27 of Order 41 of C.P.C. are satisfied, additional evidence cannot be received by the appellate court and in the present case as the said conditions were not satisfied, the trial court rightly dismissed the petition and the impugned order does not warrant any interference. 8. There is no dispute that additional evidence can be received even at the appellate stage as per the judgments relied on by the counsel for the petitioner, but the same is subject to fulfillment of conditions stipulated in Rule 27 of Order 41 of CPC. The said provision is extracted as under for better appreciation. 27. Production of additional evidence in Appellate court: (1) The parties to an appeal shall not be entitled to produced additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed; or (b) The Appellate Court require any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate court may allow such evidence or document to be produced, or witnesses to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. 9. From a reading of the above provision it is clear that additional evidence can be permitted by the appellate court provided that the lower court refused to admit evidence which ought to have been admitted; that the party seeking to produce additional evidence could establish that the document sought to be received, was not within his knowledge or that he could not produce the same even after exercise of due diligence ; or that the appellate court required the said evidence to pronounce the judgment. 10. Coming to the facts of the present case in order to prove that the petitioner was at Sailu at Maharashtra as on the date of execution of the suit promissory note, he is seeking to adduce additional evidence. As found in the impugned order at the earliest point of time i.e., at the time of issue of reply notice, which is marked as Ex.A-11, the non-presence of the petitioner at Nizamabad was not stated. At the time of filing written statement also the petitioner file the list of witnesses, whom he is now seeking to summon for giving evidence by producing these documents. But these witnesses were not examined. Further the I.A.No.719/2007 filed by him was dismissed though with certain observations. Challenging the same, he did not prefer any appeal. Therefore, at the belated stage without fulfilling the conditions under Order 41, Rule 27, the petitioner is not justified in seeking the court to receive additional evidence. Considering all these factors the court below rightly found that this petition is filed to cover up the latches and that there are no reasonable grounds to allow the petition. 11. For the foregoing reasons, I do not find any ground to interfere with the impugned order and the revision is devoid of any merit and the same is dismissed. No costs. AVS -------------------------------- 30—04—2010 [1] AIR 1974 SC 2069 [2] (1996)8 SCC 345 [3] AIR 2002 Madras 213 [4] AIR 1997 SC 3243 [5] 1990(2) APLJ (NRC) 15 [6] AIR 2005 SC 3353 [7] AIR 2004 ORISSA 194 [8] 2001(1) ALT 60 (SC) [9] 2003(4) ALT 466