Judgment:
P.K. Misra, J.
1. Defendant-appellant, in a pending appeal has filed this Civil Revision challenging the legality of the order of the lower appellate Court rejecting the prayer for adducing additional evidence.
2. In view of the order proposed to be passed, it is not necessary to recount in detail the cases of either party. Suffice it to say that plaintiffs-opposite parties 1 to 13 having succeeded in the trial Court in T.S. No. 223 of 1989, T.A. No. 14 of 1993 was filed by the present petitioner. During the pendency of the said appeal, an application under Order 41, Rule 27 of the Code of Civil Procedure, was filed by the present petitioner seeking permission of the appellate Court to adduce additional evidence. The said petition having been rejected by order dated 28.4.1995, the present civil revision has been filed.
3. The learned counsel for the petitioner has advanced lengthy argument in support of his prayer for adducing additional evidence and the learned counsel for the opposite parties has vehemently objected to the contentions raised by the counsel for the petitioner. On going through the impugned order as well as the order sheet of the lower appellate Court, I find that the lower appellate Court has committed an illegality in disposing of the petition for additional evidence at that stage. Law is well-settled that ordinarily an application for additional evidence should be considered along with the merit of the appeal as the appellate Court would be then in a better position to find out about the relevancy and admissibility of the additional evidence. In the present case, it appears that before taking the appeal for hearing, the lower appellate Court has considered the application and rejected the same. In view of the decision of this Court reported in AIR 1962 Orissa 9, (Banchhanidhi Behera v. Ananta Upadhaya and Ors.), it would have been better for the appellate Court to postpone the consideration of the petition for adducing additional evidence till the hearing of the appeal on merit. Keeping in view the aforesaid principle, I think interest of justice would be amply served by vacating the impugned order of the lower appellate Court and directing the appellate Court to consider the petition for adducing additional evidence along with the hearing of the appeal. Needless to point out that the appellate Court shall consider the question afresh without being influenced by any of the observations made either in the impugned order or in the present order.
4. Subject to the aforesaid observations, the civil revision is disposed of. There will be no order as to costs. The L.C.R. may be sent back immediately.
All the parties are directed to appear before the lower appellate Court on 15th July, 1998 to receive further instruction in the matter.