Madras High Court
Muthuswamy Goundar vs Ramaswamy Goundar on 16 May, 2007
Equivalent citations: AIR 2007 (NOC) 2130 (MAD.) (MADURAI BENCH), 2007 (6) AKAR (NOC) 907 (MAD.) (MADURAI BENCH)
Author: V. Dhanapalan
Bench: V. Dhanapalan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 16/05/2007 Coram: The Honourable Mr. Justice V. DHANAPALAN S.A. No.335 of 1995 1.Muthuswamy Goundar 2.Chellammal 3.M. Murugaswamy .. Appellants vs. Ramaswamy Goundar .. Respondent Second Appeal preferred under Section 100 of Civil Procedure Code against the judgment and decree dated 07.11.1994 made in A.S. No.77 of 1993 on the file of the Court of the Principal Subordinate Judge, Dindigul, preferred against the judgment and decree dated 26.06.1991 made in O.S. No.53 of 1986 on the file of the District Munsif Court, Palani. !For appellants ... Mr. T.M. Hariharan for Mr. S. Narayanan ^For respondent ... Mr. K. Srinivasan :JUDGMENT
The defendants in O.S. No.53 of 1986 are the appellants herein. The suit was filed by the respondent/plaintiff for declaration of title and permanent injunction in respect of the land in Survey No.1008/1B5 covering an extent of 84 cents.
2. The case of the plaintiff, in brief, is as follows;
The suit property and some other properties originally belonged to the plaintiff and his brother Kumarasamy and they lost the same in a Court auction in O.S. No.119 of 1953 and one Karuppanna Gounder purchased the same covering an extent of 1.57 acres under Ex.A.1, Sale Certificate dated 20.01.1960 and in turn, sold the same to the plaintiff and his brother's son Rathinasamy and as such, both of them became entitled to half share each and five years prior to the filing of the original suit, they divided the property into 84 cents and 73 cents respectively (totally 1.57 acres) between them. The appellants/defendants are disturbing the possession of the respondent/plaintiff and hence, the suit.
3. The appellants/defendants filed a written statement contending that Karuppanna Gounder, the auction purchaser purchased only an undivided share of 1.57 acres out of 25.05 acres under Patta No.45 and no document was marked by the respondent/plaintiff to prove the delivery of possession of the suit property to the said Karuppanna Gounder. It was also their contention that there was no reference of the suit survey no. either in the Sale Certificate issued by the court or in the sale deed in favour of the respondent/plaintiff and as such, the suit property was not purchased by Karuppanna Gounder. Their further contention was that the third appellant had already filed a suit in O.S. No.727 of 1984 against the brother of the respondent/plaintiff and his wife Meenakshi Ammal for declaration and injunction in respect of S. No.1008/1B5 and got the suit decreed and thus, neither the respondent's brother nor his wife had right over the suit property and as such, the sale from a person without title is not a valid one.
4. The Trial Court, on examination of the oral and documentary evidence, held that in the absence of specific mention of the suit survey no. in Ex.A.3, chitta extract and Ex.A.4, kist receipt given to Patta No.45, the mere existence of the name of the respondent/plaintiff is not sufficient to prove that the suit property belongs to the respondent/plaintiff. Holding further that the respondent/plaintiff had not proved as to how the suit property was acquired by him, the Trial Judge dismissed the suit.
5. On the appeal preferred by the respondent/plaintiff, the lower appellate court, by accepting an additional evidence, namely Ex.A.5, sale deed executed in favour of the respondent/plaintiff's brother by the one Rathinamoorthy Gounder, the father of the first appellant, held that the suit property and other properties originally belonged to Rathinamoorthy Gounder, who sold it under Ex.A.5 to the respondent/plaintiff. Further, since the sale was effected through court under Ex.A.1, the lower appellate court accepted the title of the auction purchaser and came to the conclusion that the properties covered under Ex.A.5 and A.1 are one and the same and reversed the judgment of the Trial Court and decreed the suit against which, the defendants in the suit have preferred this Second Appeal.
6. This Second Appeal has been admitted on the following substantial question of law:
"Whether the plaintiff is entitled to ask for declaration and injunction when the sale deed in favour of his predecessor-in-title is only for an undivided share and whether the relief sought for is maintainable without impleading the other sharers?
7. Heard Mr. T.M. Hariharan, learned counsel for the appellants/defendants and Mr. K. Srinivasan, learned counsel for the respondent/plaintiff.
8. Mr. Hariharan, learned counsel appearing for the appellants has contended that the lower appellate court has erred in allowing the respondent to produce an additional evidence separately, contravening the well-settled legal position that the application to produce additional evidence has to be heard along with the appeal and not separately. In support of this contention, he has relied on a judgment of this Court reported in 1998 (1) CTC 483 in the case of M. Shanmughasundaram vs. N.T.P. Subburaya Chettiar (para 2) and in the said case, the case reported in 1994 (2) LW 376 has been relied on and the relevant paragraph reads as under;
"It is settled position of law that an application filed in the appeal for permission to adduce additional evidence has to be considered along with the main appeal and not separately. The Privy Council has considered this question in Kessowji vs. G.I.P. Railway, L.R. 34 I.A. 115. . . and has again reiterated the same view in Parsotim vs. Lal Mohan L.R. 58 I.A. 254. . . The Supreme Court in Arjun Singh vs. Kartar Singh, AIR 1951 SC 193..., after referring to the aforesaid decisions, has held that without examination of the evidence on record and without a decision is reached that the evidence as it stood disclosed, a lacuna which the Court require to be filled up for pronouncing its judgment, the appellate court would not be justified in admitting the additional evidence under O.41, Rule 27, CPC."
9. On the same contention, he has relied on yet another judgment of this Court reported in 2005 (3) CTC 292 in the case of Pappayammal vs. Palanisamy & Others (para 16) wherein it has been held as under:
"Admittedly, there is no averment in the plaint about the stand now taken, on the basis of these additional documents. It is a settled law, that it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirement of Order 41, Rule 27, CPC. Additional evidence cannot be permitted in the appellate stage, in order to enable another party to remove certain lacunae present in that case. That principle has to be applied in dealing with the petition of additional evidence, when the appellate Court is unable to pronounce the judgment on the materials before it, without taking into consideration the additional evidence, sought to be adduced by the plaintiff. If this principle is applied to the present facts of the case, it is obvious that the four documents, referred to in the petition, sought to be produced as additional evidence, cannot be said to be more relevant for the issue to be decided and it can very well be said that this Court is able to pronounce the judgment on the basis of the materials placed before the Trial Court, without taking into consideration, the documents 1 to 4 sought to be admitted as additional evidence."
10. The judgment of this Court reported in 2001 (4) CTC 624 in the matter of Kumarasamy Mudaliar vs. Kuttiappa Mudaliar is also cited by the counsel for the appellants in support of his contention that the application for adducing additional evidence has to be disposed of along with the main appeal and the relevant paragraph reads as under:
"Learned counsel for the appellant relied on the decision in Ayyaswami , M. and another v. S.P. Ganesan, 1994 (2) LW 376 for the proposition that "the appellant had already filed an application under Order 41,Rule 27, CPC before the lower appellate court for adducing additional evidence, but the appellate court before passing any order on the application, had disposed of the appeal itself. It is a well settled position of law that an application filed in the appeal for permission to adduce additional evidence has to be considered along with the main appeal and not separately." There is no dispute about this principle. Reliance is also placed upon another decision in Devaraja In Re, 1955 M.W.N. 435 relating to the issue of non-reply to the notice and it has no application to the case on hand."
11. It is the further contention of the counsel for the appellants that as per proviso to Section 100(5) of the Civil Procedure Code, a fresh substantial question of law, if it is deemed to be necessary for the disposal of the case, can be formulated though it was omitted to be formulated at the time of admission and the same can be heard and accordingly, the appeal decided. To strengthen his argument in this regard, he has relied on a judgment of the Supreme Court reported in 2004 (5) CTC 683 in the case of Sabitri Chatterjee vs. Debi Das Roy (para 6) "The submission urged on behalf of the appellant before us is that there was really no question of law which arose for consideration of the High Court. The finding of fact recorded by the appellate court as regards the bona fide personal need of the appellant was supported by evidence on record and therefore, there was no justification for the High Court to set aside that finding. In any event, it was submitted, there was no justification for an amendment of the pleadings and recording of further evidence in view of the fact that the matters sought to be brought on record by way of amendment and additional evidence were already before the Court and what was described as future developments were facts within the knowledge of the parties. We need not refer to the merit of the submissions urged before us by learned counsel for the appellant. However, we notice that the High Court before disposing of the Second appeal did not frame the substantial question of law as required by Section 100 of Code of Civil Procedure. Sub-section 4 of Section 100, CPC mandates that where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. The appeal shall then be heard on the question so formulated leaving it open to the respondent to argue that the case does not involve such question. No doubt, the proviso to Section 100, CPC does not take away the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. In the instant case, the learned Judge has not formulated any question of law which requires determination under Section 100, CPC. This Court, in series of decisions, has insisted upon compliance with the mandatory requirement of sub- section 4 of Section 100, CPC."
12. On his above contention, he has placed further reliance on a judgment of the Supreme Court reported in 2005 (4) CTC 573 in the case of Phool Pata and another vs. Vishwanath Singh & others: (paras 8 & 9) "As a bare perusal of the provision shows, nothing in sub-section (5) takes away or abridges power of the High Court to hear for reasons to be recorded, the appeal on any other substantial question, not formulated earlier, if it is satisfied that the case involves such question.
In the instant case, the only question that was formulated has been quoted above. Undisputedly, there was no other question formulated regarding the findings of the appellate court on the readiness and willingness to aspect. In terms of sub-section (5), the High Court could have heard the appeal on a question not formulated if for reasons to be recorded if it was of the view that the case involves such question. In the instant case, no such reason has been recorded. The memorandum of appeal filed before the High Court also does not indicate that any specific question was formulated in that regard."
13. The Supreme Court judgment reported in the case of 1999 (II) CTC 468 in the case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar is also on the same lines and the relevant para reads as under: (para 3) "After the amendment, a second appeal can be filed only if a substantial question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law involved and the High Court is obliged to satisfy itself regarding the existence of such question. If satisfied, the High Court has to formulate the substantial question of law involved in the case. The appeal is required to be heard on the question so formulated. However, the respondent at the time of the hearing of the appeal, has a right to argue that the case in the court did not involve any substantial question of law. The proviso to the Section acknowledges the powers of the High Court to hear the appeal on a substantial point of law, though not formulated by it with the object of ensuring that no injustice is done to the litigant where such question was not formulated at the time of admission either by mistake or by inadvertence."
14. It is also the further contention of the counsel for the appellants that the lower appellate court, having decided to receive the additional evidence, ought to have remanded the matter to the trial court for fresh consideration, rather than decreeing the suit. With regard to the extent of property conveyed to the respondent's brother under Ex.A.5, the counsel for the appellants has contended that only 1.13 acre has been conveyed and the entire property was not conveyed, as wrongly observed by the lower appellate court and furthermore, when it is the case of the respondent that he lost an area of 1.57 acres in the court auction sale, the respondent's brother had purchased only 1.13 acres in Patta No.45 under Ex.A.5 and on this vital ground, the judgment of the lower appellate court has to be set aside and the suit filed by the plaintiff dismissed as rightly done by the Trial Court.
15. The counsel for the appellants has further contended that even on the assumption, without conceding that the respondent is entitled to any right over the suit property under patta no.45, he should have only filed a suit for partition against the joint owners of the properties contained in the patta and as such, a suit for a specific item is not maintainable on the ground that the co-sharers were not impleaded in the suit.
16. Contending contra, Mr. K. Srinivasan, learned counsel for the respondent has submitted that the respondent/plaintiff and his brother's son became entitled to the suit property on the basis of court auction sale and the sale certificate marked as Ex.A.1 cannot be disputed and in addition, there is no evidence on the part of the appellants to dispute the correctness of the same either by way of any oral or documentary evidence. He has further contended that the lower appellate court considered the application for marking additional evidence along with the appeal and not separately as contended by the counsel for the appellants and hence, it is perfectly justified in accordance with Order 41, Rule 27 of CPC. While contenting that the appellate court can receive additional evidence under certain circumstances, he has placed reliance on para 14 of the judgment of this Court reported in 2005 (3) CTC 292 in the matter of Pappayammal vs. Palanisamy & others which has been relied on by the counsel for the appellants and it reads as under:
"On going through the above provision, it is clear that on three contingencies, the appellate Court can admit additional evidence in appeal, viz.,
1. Trial Court refused to admit evidence which ought to have been admitted;
2. The party, seeking to produce the additional evidence, had no knowledge of the existence of such additional evidence or could not, after the exercise of due diligence, be produced by him at the time when the case was pending before the trial court, and
3. the appellate court requires any document to be produced to enable it to pronounce the judgment or for any other substantial cause."
17. It is also the strong argument of the counsel for the respondent that the contention raised by the counsel for the appellants that the lower appellate court ought not to have accepted the additional evidence separately had not been raised either in the grounds of appeal nor had they been framed as substantial question of law and moreover, if at all, it has to be considered, it can be done so only with the leave of the Court as contemplated under Order 42 Rule 2 of the CPC and as such, the contentions not framed as substantial question of law need not be considered.
18. From the findings of the Trial Court, it is seen that the respondent/plaintiff has claimed title to the suit property only by virtue of Ex.A.3, chitta extract and Ex.A.4, kist receipt given to Patta No.45. But, from a perusal of these two exhibits, it is clear that there is no mention of the survey number of the property in question in those exhibits. Even the respondent/plaintiff himself has deposed that there are several Survey Nos. in Patta No.45. Furthermore, Ex.A.1, sale certificate issued by the court also does not carry any mention of the survey no. of the suit property. When such is the case, as rightly argued by the counsel for the appellants, these exhibits alone cannot be of any help to the respondent/plaintiff to claim title to the property in question. The Trial Court has also found that the respondent/plaintiff has not at all proved as to how his predecessors-in-title acquired the suit property nor has he explained as to why Ex.B.1, sale deed in favour of the first defendant's father should be disbelieved. Thus, because of the failure of the respondent/plaintiff to prove his case, the respondent/plaintiff has to fail and accordingly, the Trial Court has dismissed the suit.
19. The plaintiff, in the appeal filed by him before the lower appellate court, has filed an interlocutory application to mark an additional evidence, viz., Ex.A.5, sale deed in favour of his brother and the lower appellate court has allowed the said application by accepting the additional evidence as Ex.A.5 and based on the same, has come to the conclusion, that the respondent/plaintiff 's brother acquired the suit property by way of Ex.A.5 and decreed the suit.
20. Now, the questions of law which are raised by the counsel for the appellants are (i) whether the lower appellate court is correct in deciding the interlocutory application separately as against the legal proposition that an application for additional evidence should not be considered separately and it should be dealt with along with the appeal and (ii) whether the lower appellate court is right in admitting the additional evidence without assigning any reason for such admission. The decisions of this Court reported in 1998(1) CTC 483 and 2005 (3) CTC 292 which are referred to above stand by the side of the appellants.
21. In this connection, reference may be made to Order 41, Rule 27 which reads as follows:
Production of additional evidence in appellate court
1. The parties to an appeal shall not be entitled to produce 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 requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the court may allow such evidence or document to be produced or witness to be examined.
2. Wherever the additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission.
22. In the case on hand, from the materials available on record, it is seen that the respondent/plaintiff has nowhere explained that he was not able to produce Ex.A.5 before the Trial Court despite due diligence exercised by him. Admittedly, the Trial Court has not refused to accept Ex.A.5 and this is clear from the undisputed fact that it was not produced before the Trial Court. Further, if the lower appellate court was of the opinion that it could not pronounce its judgment but for Ex.A.5, sale deed, then, it should have admitted that additional evidence by recording reasons for such admission as mandated under Order 41 Rule 27, CPC. In the instant case, it is seen that the lower appellate court has considered the interlocutory application separately contrary to the legal proposition that it should not be done so and has also failed to assign reasons while admitting Ex.A.5. If this additional evidence is a material document to be taken into consideration to decide the issue, then, the lower appellate court ought to have remitted the matter to the Trial Court for the purpose of taking evidence on the same and then to decide the issue afresh which has not been done. Thus, when the fact remains that Ex.A.5 was not produced before the Trial Court, I am of the view that the lower appellate court had gone wrong in reversing the judgment of the Trial Court. In this context, some useful reference could be made to a judgment of this Court reported in 2003-1-L.W. 221 in the matter of Pushpa Bai Stalin (died) & 3 others vs. Dhaya Poomkamazh & 3 others ((para 9):
"In this case, the petitioners herein canvassed before the appellate court that the documents were created after the judgment and decree was passed by the Trial Court. The details of the documents sought to be produced by the respondent were also brought to the notice of the appellate court that they were well after passing the decree. Out of seven documents, one document was marked as Ex.A.10 before the Trial Court. One document was in no way relevant with the case. All the other five remaining documents are after the decree was passed. Unfortunately, the appellate court failed to consider the said factors, but, mechanically allowed the application which is evident in the impugned order, nothing is whispered about the relevancy of the documents. Mere repetition of Rule 27 CPC is not sufficient to allow the application under Order 41 Rule 27 CPC. Moreover, no valid reason is also assigned by the appellate court for departing from the general rule."
23. Further reference may also be made to a judgment of this Court reported in 2005-2-L.W. 442 in the matter of Goundappa Gounder and 2 others vs. Periammal (died) and 6 others (para 18) "The provisions of O.41 R.27 C.P.C. have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the Court of Appeal. In the decision reported in N. Kamalam (dead) and another vs. Ayyasamy and another (2001 (7) SCC 503 = 2002-1-L.W. 460), the Supreme Court has held thus:
". . .The provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill p the omission in the Court of appeal - it does not authorise any lacunae or gaps in evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way. . ."
The Appellants have also not alleged due diligence in placing the documents and that some could not be discovered despite search. As held by the Supreme Court, O. 41, Rule 27, CPC cannot be invoked to patch up the weak points. Hence, the request of the appellants to receive the additional documents cannot be considered."
24. Of course, it is contended by the counsel for the respondent/plaintiff that no question of law to the effect whether an additional evidence can be accepted at the appellate stage, has been formulated at the time of admission and as such, that cannot be a point for discussion at the time of final hearing. In this regard, it is worth citing proviso to Section 100(5) of the CPC which does not take away or abridge the power of the Court to hear the appeal on any other question of law not formulated by it, if it is satisfied that the case involves such question. In my considered view, this is one such case where this Court is satisfied that the question of law with regard to acceptance of additional evidence, though not formulated at the time of admission, needs to be looked into because of the peculiar circumstances of the case and this view of mine is supported by the Supreme Court judgments, viz., the ones reported in 2004 (5) CTC 683 and 2005 (4) CTC 573 relied on by the counsel for the appellants.
25. From the above findings, since this Court is of the view that the lower appellate court, first of all, ought not to have accepted Ex.A.5, the additional evidence, without giving any reasoning, and since the substantial question of law which was formulated at the time of admission of this Second Appeal cannot be decided at this stage as the lower appellate court has accepted the additional evidence without assigning any reason, by holding that the lower appellate court had miserably erred in taking up the interlocutory application separately instead of taking it up along with the appeal and admitted the additional evidence without assigning any reason, the judgment of the lower appellate court is set aside and the matter is remitted to the lower appellate court to decide the issue by recording reasons for its admitting Ex.A.5 as additional evidence as mandated by Order 41 Rule 27, CPC or in the alternative to remit the matter to the Trial Court for the purpose of taking evidence on Ex.A.5 to decide the issue. Since the appeal is of the year 1995, this exercise shall be done by the lower appellate court within a period of three months from the date of receipt of a copy of this judgment.
In fine, the appeal has to succeed and accordingly stands allowed with the aforesaid directions. No costs.
To 1 The Principal Subordinate Judge, Dindigul 2 The District Munsif, Palani