John C. Thomas S/O Thomas Vs. P.M. Chandy S/O Mathew - Court Judgment

Excerpt:

.....for a student to get declared as passed, though he had scored less than 35 marks in some subjects cannot be accepted, as long as the candidate secures 35 marks in some subjects cannot be accepted as long as the candidate secured 35marks in some subject cannot be accepted as long as the candidate secured 35 marks in aggregate. in the absence of any rule governing the field, the stand off the government cannot be accepted. more so, because the petitioner-students have been permitted to reject only those two subjects and are permitted to take up the examination for rejected subject. even after the declaration of results of the examinations now held, their aggregated marks will be more than 35. hence, the impugned communications cannot be sustained in law. in view of the above, writ petitions are allowed and impugned communication were set aside. the respondent-authorities were directed to issue fresh marks card to petitioners showing the marks obtained by them in different subjects......petitioner has challenged the said judgment and decree in r. a. 135/99. during the pendency of the appeal, the petitioner files an application under order xli rule 27, c.p.c. for additional evidence. the learned, appellate judge has rejected the said application on the ground that it is not permissible at this point of time to lead additional evidence. annexure-a dated 15.10.2001 is the impugned order.3. sri k.m. hataraj, learned counsel appearing for the petitioner, submits that in the normal course, an application for additional evidence will have to ha board along with the main appeal and cannot be disposed of at the threshold.4. the said contention has to he accepted in view of the judgment of this court reported in 1988(2) k.l.j. 388 (sreenivasa krishnappa bilagi v. shivappa channabasappa) .5. time and again, this court has said that any interlocutory application in the nature of additional evidence, amendment of the pleadings, either plaint or written, statement, cannot be disposed of at the threshold; it will have to be heard along with the main appeal. this is a fallacy which has been committed by the learned appellate judge.6. consequently the impugned order at.....

Judgment:

ORDER

Ajit J. Gunjal, J.

1. It is noticed, that the respondent is served and unrepresented.

2. The respondent herein had filed the suit 'against the petitioner for recovery of money. The said suit was decreed by judgment and decree dated 28.2.1997. The petitioner has challenged the said judgment and decree in R. A. 135/99. During the pendency of the appeal, the petitioner files an application under Order XLI Rule 27, C.P.C. for additional evidence. The learned, appellate judge has rejected the said application on the ground that it is not permissible at this point of time to lead additional evidence. Annexure-A dated 15.10.2001 is the impugned order.

3. Sri K.M. Hataraj, learned Counsel appearing for the petitioner, submits that in the normal course, an application for additional evidence will have to ha board along with the main appeal and cannot be disposed of at the threshold.

4. The said contention has to he accepted in view of the judgment of this court reported in 1988(2) K.L.J. 388 (Sreenivasa Krishnappa Bilagi v. Shivappa Channabasappa) .

5. Time and again, this court has said that any interlocutory application in the nature of additional evidence, amendment of the pleadings, either plaint or written, statement, cannot be disposed of at the threshold; it will have to be heard along with the main appeal. This is a fallacy which has been committed by the learned appellate judge.

6. Consequently the impugned order at Annexure-A dated 15.10.2001 passed in R.A.135/99 is sat aside. I.A.II is remitted to the learned appellate judge to be heard along with the main appeal.