Madras High Court
Deivanai vs Muthu (A) Velayudham on 16 September, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 05.07.2021
Pronounced on : 16.09.2021
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
CRP PD(MD).Nos.9 & 10 2021
and
CMP(MD)No.91 of 2021
1.Deivanai
2.Palanivel
3.Natarajan
4.Neela : Petitioners/Respondents/
Respondents/Plaintiffs (in both petitions)
Vs.
Muthu (a) Velayudham : Respondent/Petitioner
Appellant/Defendant (in both petitions)
PRAYER in CRP PD(MD).No.9 of 2021: Civil Revision Petition filed under
Article 227 of the Constitution of India, setting aside the fair and decreetal order
dated 20.11.2020 in I.A.No.8 of 2017 in A.S.No.10 of 2017 on the file of the
Sub Court, Aranthangi.
PRAYER in CRP PD(MD).No.10 of 2021: Civil Revision Petition filed under
Article 227 of the Constitution of India, setting aside the fair and decreetal order
dated 20.11.2020 in I.A.No.156 of 2018 in A.S.No.10 of 2017 on the file of the
Sub Court, Aranthangi.
https://www.mhc.tn.gov.in/judis/
1/27
(in both petitions)
For Petitioners : Mr. M.P.Senthil
For Respondent : Mr.P.Vadivel
COMMON ORDER
These Civil Revision Petitions are directed against the orders passed in I.A.No.8 of 2017 and I.A.No.156 of 2018 in A.S.No.10 of 2017, dated 2011.2020, on the file of the Subordinate Court, Aranthangi, receiving the additional evidence under Order 41 Rule 27 CPC.
2.The revision petitioners are the respondents/plaintiffs. One Venkatachaladevar, as sole plaintiff filed the suit in O.S.No.416 of 2003 before the Subordinate Court, Pudukkottai against the respondent/appellant/defendant, claiming the reliefs of mandatory injunction, recovery of possession and for permanent injunction and subsequently, on the point of pecuniary jurisdiction, the suit was transferred to the file of the District Munsif Court, Aranthangi and the same was taken on file in O.S.No.154 of 2004. Pending suit, the sole plaintiff had died and hence, his legal representatives/revision petitioners herein got themselves impleaded as plaintiffs 2 to 5. After trial, the learned District Munsif has passed the judgment on 06.10.2009, decreeing the suit as prayed for. Aggrieved by the said judgment and decree, the defendant has preferred an appeal in A.S.No.33 of 2010 on the file of the Subordinate Court, Pudukkottai https://www.mhc.tn.gov.in/judis/ 2/27 and that subsequently, the appeal was transferred to the file of Subordinate Court, Aranthangi and the same was taken on file in A.S.No.10 of 2017 and the same is pending.
3.During the pendency of the appeal before the Subordinate Court, Pudukkottai, the defendant has filed two applications in I.A.No.452 of 2012 and I.A.No.187 of 2013 for reception of additional evidence under Order 41 Rule 27 CPC. Subsequently, the said applications were also transferred to the Subordinate Court, Aranthangi and the same were taken on file in I.A.No.156 of 2018 and I.A.No.8 of 2017, respectively.
4.The learned Appellate Judge, after enquiry, has passed an order on 03.10.2018 allowing both the applications. Aggrieved by the said order, the plaintiffs have filed the revisions before this Court in C.R.P.(PD)(MD)Nos.2741 and 2718 of 2018 and this Court has passed an order dated 03.03.2020, setting aside the orders passed by the Appellate Court and directed the Appellate Court to decide the above applications filed under Order 41 Rule 21 CPC along with the appeal.
5.In pursuance of the orders of this Court, dated 03.03.2020, the learned Appellate Judge has taken up the hearing of the appeal along with applications https://www.mhc.tn.gov.in/judis/ 3/27 for reception of additional evidence and passed the impugned order dated 20.11.2020, permitting the defendant to exhibit the documents and to adduce further evidence and permitting the plaintiffs to adduce rebuttal evidence, if any. Challenging the said order, the plaintiffs have come forward with these revisions.
6.The facts not in dispute are that the suit property belonged to one Annamalaidevar, father of the original plaintiff Venkatachaladevar and his brother Rangasamydevar, that the said Rangasamydevar sold his half share 17 ½ cents situated on the west to one Chidambaradevar, father of the defendant, that the eastern half share was owned by Annamalaidevar and his son Venkatachaladevar and that after the death of Annamalaidevar, the plaintiff Venkatachaladevar had been in possession and enjoyment of the same.
7.The plaintiff's case is that the defendant taking advantage of joint patta, has trespassed into the plaintiff's property and despite the objections, the defendant had proceeded with his constructions and therefore, the plaintiff was constrained to file the above suit for mandatory injunction for removal of constructions made in the property; for recovery of possession and for permanent injunction restraining the defendant and his men from interfering with the plaintiff's peaceful possession and enjoyment of the suit property. https://www.mhc.tn.gov.in/judis/ 4/27
8. The defence of the defendant is that after purchasing the share of Rangasamydevar by the defendant's father, the plaintiff's father Annamalaidevar and the defendant's father Chidambaradevar were in a cordial relationship and that both of them have entered into a exchange deed dated 07.08.1969, whereunder the eastern share of the suit property owned by Annamalaidevar was given to the defendant's father Chidambaradevar and two items of properties situated in Mudapulikadu village and Vembankudi Village owned by the Chidambaradevar were given to the plaintiff's father Annamalaidevar and that the entire suit property was owned by the Chidambaradevar since 07.08.1969. After the death of Chidambaradevar, the suit property was allotted to the defendant in the partition effected in their family, that the defendant and his father have been in continuous possession and enjoyment of the suit property for more than 35 years with the knowledge of the first plaintiff, his brothers and father Annamalaidevar and perfected their right by adverse possession and that since the suit property was not owned by plaintiff, the question of claiming mandatory injunction, recovery of possession and permanent injunction does not arise at all.
9.As already pointed out, the learned District Munsif by holding that the suit property belonged to the plaintiffs, decreed the suit as prayed for, granting the reliefs of mandatory injunction, possession and permanent injunction. https://www.mhc.tn.gov.in/judis/ 5/27
10.The application in I.A.No.156 of 2018 has been filed under Order 41 Rule 27 CPC, seeking permission for production and for marking the unregistered exchange deed 07.08.1969 as additional evidence. The application in I.A.No.8 of 2017 has been filed under Order 41 Rule 27 CPC, seeking permission for production and marking of the copies of Resettlement Register and certified copy of the patta, as additional evidence.
11.Let us first consider the application in I.A.No.156 of 2018 i.e., for receiving the exchange deed dated 07.08.1969.
12. The case of the defendant is that he has already filed the exchange deed dated 07.08.1969 before the trial Court, that the same was omitted to be exhibited, that the said mistake is neither wanton nor wilful, that the said document is very much required for proving the defence taken by the defendant and that the defendant will be put to irreparable loss and hardship, if the document is not received in evidence.
13.The defence of the plaintiff is that the document sought to be marked i.e., exchange deed is inadmissible in evidence, that the trial Court considered the said document and rejected as inadmissible for want of registration and that since the correctness of the trial Court's decision has to be decided in the appeal, the said document cannot be admitted in evidence under Order 41 Rule 27 CPC. https://www.mhc.tn.gov.in/judis/ 6/27
14.Considering the above, two questions arise for consideration. The first one is as to whether the document sought to be exhibited i.e., the exchange deed dated 07.08.1969 is inadmissible in evidence and the second one is, as to whether the same can be received as additional evidence under Order 41 Rule 27 CPC.
15.Admittedly, the exchange deed dated 07.08.1969 has already been produced before the trial Court and that the same is available with the Court records. Moreover, it is pertinent to note that the said document is unstamped and unregistered. As rightly pointed out by the learned counsel for the plaintiffs, the trial Court has given a finding that since the exchange deed is unregistered, the same is legally invalid and that the same cannot be used to prove the ownership of the defendant over the suit property nor to prove the plea of adverse possession canvassed by the defendant. At this juncture, it is necessary to refer to the legal position relied on by the learned counsel for both the parties.
16.The learned counsel for the revision petitioner has relied on the following decisions;
(i) 2008 (5) CTC 260 (SC) :
K.B.Saha and sons Private Limited Vs. Development Consultant Limited :
https://www.mhc.tn.gov.in/judis/ 7/27 “Registration Act, 1908 (16 of 1908) Sections 17 & 49 – Transfer of Property Act, 1882 (4 of 1882), Section 107 – Admissibility of unregistered lease deed in evidence – Document which requires to be registered is not admissible in evidence but can be used as evidence of collateral purpose as provided in Proviso to Section 49 of Registration Act – Collateral transaction must be independent of, divisible from, transaction which requires registration – Collateral transaction should be one which does not create, extinguish title, interest, right or interest, etc. in immovable property – Once document cannot be admitted in evidence for want of registration any important clause in such document cannot be collateral purpose – Clause in lease deed enabling only named officer or his family members of Lessee occupying leased premises is important clause and could not be looked into as lease deed was not registered.
...
21. From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that :
1. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
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4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.”
(ii) 2020 (1) CTC 47 (Mad) :
Thangamuthu and others Vs. A. Jeyaraj :
“12. It is clear from the Judgments that have been cited on the side of the Petitioners that a document, which is compulsorily registrable under the Registration Act, cannot be admitted in evidence, unless, it is registered. If a document is inherently bad for non-registration, it cannot be cured by paying deficit Stamp Duty and Penalty. It is even a settled position of law that such documents cannot be looked into even for collateral purposes.”
(iii) 2020 (4) CTC 395 (Mad) :
Amertham Vs. Thannace and another :
“Registration Act, 1908 (16 of 1908), Section 49 – Indian Stamp Act, 1899 (2 of 1899), Section 35 – Unstamped unregistered Sale Deed – Whether admissible in evidence for collateral purpose in Suit for declaration of title – Plaintiff claimed adverse possession and marked unstamped unregistered Sale Deed to prove possession – No specific plea of Adverse Possession in Plaint – Purpose of making said sale Deed is only to prove Plaintiff's title as per pleadings – Held, https://www.mhc.tn.gov.in/judis/ 9/27 document cannot be looked into for any collateral purpose as it is neither stamped nor registered – Unregistered Sale Deed cannot be admitted in evidence as Plaintiff claims title and Suit itself is for Declaration of Title based on unregistered Sale Deed – Collateral transaction must be independent and divisible from transaction, which requires registration – Collateral transaction should be one, which does not create or extinguish title or interest in immovable property – Trial Court right in holding that document is inadmissible in evidence for want of Stamp Duty and Registration – Civil Revision Petition dismissed.
.....
24. ....
The petitioner has not even mentioned in the plaint that the document of sale deed dated 25.11.1973 is an unstamped and unregistered document. As it was pointed out earlier, the contention of the petitioner's counsel that the petitioner has pleaded adverse possession cannot be accepted as there is no specific plea as required in law. The document of unregistered sale deed is relied upon not for collateral purpose but for proving the transfer of right in immovable property as per pleadings. Though it is stated by the learned Counsel for the petitioner that the document may be relied upon to prove a oral agreement of sale, date of entry into possession of the land and nature of possession from the date of transaction, the collateral transaction referred to by the learned Counsel flow from the document of conveyance and the collateral purpose referred to by the counsel are to establish the right of petitioner under unregistered sale deed. From the pleading in the plaint, it cannot be contended that the document is required to prove a https://www.mhc.tn.gov.in/judis/ 10/27 collateral transaction.
25.The judgment of the Privy Council relied upon by the petitioner has no application, since the unregistered gift deed was relied upon to prove adverse possession before Privy Council. Similarly, the judgment of the Hon'ble Supreme Court in Bondar Singh case is based on the pleading as borne out from the records. If we consider the issue in the background of the pleading, this Court has no hesitation to hold that the unregistered sale deed dated 25.11.1973 cannot be admitted in evidence as the petitioner claims title and the suit itself is for declaration of title based on the unregistered sale deed. As it has been held by the Hon'ble Supreme Court and this Court in several judgments, a collateral transaction must be independent and divisible from the transaction which requires registration. A collateral transaction should be one which does not create or extinguish title or interest in immovable property. In this case, the trial Court is right in holding that the document is inadmissible in evidence for want of stamp duty and registration....”
17.The learned counsel for the respondent has relied on the following decisions :
(i) 2015 (6) CTC 467:
Ramachandran and others Vs. Guruvi Reddy :
“10.In the case on hand, the plaintiff has filed the suit for declaration of title, permanent injunction, recovery of possession and for mesne profits. In the written statement, in paragraph No.5, the defendants have stated that they are in possession of the suit https://www.mhc.tn.gov.in/judis/ 11/27 property measuring an extent of 4.76 acres since the exchange deed dated 19.03.1908. Now, in order to establish that they have been in possession of the suit property since 19.03.1908, they seek to mark the document to prove their possession. The purpose for marking the document by the defendants would clearly establish that it is for collateral purpose. They are not claiming any right or title over the suit property by virtue of the exchange deed dated 19.03.1908. Even in the affidavit itself they have stated that the document is being marked only for proving their possession over the suit property. The collateral transaction does not create, extinguish title, interest or right etc., in the suit property.
11. In the judgment reported in 2003(4) SCC 161 (cited supra), the Hon'ble Apex Court held that even a sale deed that is inadmissible in evidence can be looked into for collateral purpose.
As already stated, the collateral purpose in the judgment of the Hon'ble Apex Court is the nature of possession over the suit land.
12. In the case on hand, though there was exchange of properties on 19.03.1908, the defendants sought to mark the document only for proving their possession over the suit property.
13. The judgments relied upon by the learned counsel appearing for the petitioners squarely applies to the facts and circumstances of the present case. Though there is no dispute with regard to the ratio laid down in the judgments relied upon by the learned counsel appearing for the respondent, the judgments are not applicable to the facts and circumstances of the present case.
14. In these circumstances, following the judgment reported in 2003(4) SCC 161 (cited supra), I am of the view that the Trial Court should have allowed the application.....” https://www.mhc.tn.gov.in/judis/ 12/27
(ii) 2015 16 Supreme Court Cases 790 :
Yellapu Uma Maheswari and another Vs. Buddha Jagadheeswararao and others :
“15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exhibits B-21 and B-22 makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registerable document and if the same is not registered, becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exhibits B-21 and B-22 are the documents which squarely fall within the ambit of section 17 (i) (b) of the Registration Act and hence are compulsorily registerable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exhibits B 21 and B22 are not admissible in evidence for the purpose of proving primary purpose of partition.
16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy Vs. Chinnappareddigari Vankat Reddy, has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds https://www.mhc.tn.gov.in/judis/ 13/27 and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds.An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellants/defendants want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the Trial Court is at liberty to mark Exhibits B-21 and B- 22 for collateral purpose subject to proof and relevance.”
18.Before entering into further discussion, it is also necessary to refer Section 49 of the Registration Act, 1908, which reads as under :
“49 : Effect of non-registration of documents required to be registered - No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (IV of 1882) to be registered shall -
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered.:
[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (IV of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (I of 1877) or as https://www.mhc.tn.gov.in/judis/ 14/27 evidence of any collateral transaction not required to be effected by registered instrument.
19. It is pertinent to mention that Section 17(1)(b) of the Registration Act mandates that any document which has effect of creating and taking away the rights in respect of an immovable property must be registered. Section 49 of the said Act imposes a bar on the admissibility of an unregistered document and the proviso to the said Section provides two exceptions and the second one permits the admissibility of an unregistered document for proving any collateral transactions.
20.There is no dispute about the legal position stated in K.B.Saha's case and in Amertham's case cited supra, relied on by the learned counsel for the petitioners. The position of law is well settled that even an unregistered and unstamped document can be received in evidence to prove a collateral purpose, provided, stamp duty is paid with penalty. But, at the same time, the same cannot be admitted in evidence to prove the primary purpose, even if stamp duty is paid.
21. In K.B.Saha's case, since an unregistered lease deed was attempted to be used to prove the collateral purpose, the Honourable Supreme Court has held that attempting to rely on a material clause of the lease agreement cannot be considered as a collateral purpose. In Amertham's case, this Court https://www.mhc.tn.gov.in/judis/ 15/27 has held that the unregistered and unstamped sale deed cannot be admitted in evidence for any collateral purpose, as the plaintiff has claimed title and possession only on the basis of the said document.
22.In Thangamuthu's case cited by the learned counsel for the petitioner, three decisions of Honourable Apex Court were referred, in S.Kaladevi vs. V.R.Somasundaram and others reported in 2009(2) MLJ 361 ; Sita Ram Bhama Vs. Ramvatar reported in 2018 (3) MWN (Civil) 206 ; and Avinash Kumar Chauhan Vs. Vijay Krishna Mishra reported in (2009) 3 MLJ 409 (SC), whereunder the Honourable Supreme Court has reiterated the legal position that an unregistered document can be received in evidence for collateral purpose, unless it is duly stamped or stamp duty and penalty are paid. Since the proviso to Section 49 of the Registration Act was not taken note of and in view of the legal position settled by the Honourable Apex Court, the decision in Thangamuthu's case cannot be considered as binding precedent and the same can only be treated as per incuriam.
23.In Ramachandran's case cited by the learned counsel for the respondent, the plaintiff therein has filed the suit for declaration of title and for possession, that the defendant has taken a defence that they were in possession of the property, since the execution of exchange deed and that when the https://www.mhc.tn.gov.in/judis/ 16/27 unregistered and unstamped exchange deed was attempted to be exhibited to prove the collateral purpose, this Court, relying on the judgment of the Honourable Apex Court in Bondar Singh and others Vs. Nihal Singh and Others reported in 2003 4 SCC 161, has held that the exchange deed can be received to prove the possession over the suit property as a collateral purpose. In Yellapu Uma Maheswari' s case, the Honourable Supreme Court has reiterated the same legal position.
24.In the case on hand, admittedly, the exchange deed dated 07.08.1969 is unregistered and unstamped. In our case also, the plaintiff, by claiming title over the suit property, has sought for the relief of mandatory injunction, recovery of possession and permanent injunction. The defendant has taken a stand that since the execution of exchange deed, the defendant's father and thereafter, the defendant has been in possession and enjoyment of the suit property and that they have perfected their title by adverse possession.
25.The main contention of the defendant is that they have not claimed any title to the suit property with the help of the exchange deed, but the same is required to be exhibited to show their possession. Considering the above, the contention of the revision petitioner that the document in question, exchange deed which is unregistered and unstamped, cannot be admitted in evidence for https://www.mhc.tn.gov.in/judis/ 17/27 want of registration even for collateral purpose is not good in law and the same can be looked into for showing the collateral purpose.
26.Now, turning to the second question, it is necessary to refer Order 41 Rule 27 CPC.
“27.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 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 Appellate Court may allow such evidence or document to be produced, or witness 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.” The above provision contemplates certain circumstances when additional evidence can be adduced;
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(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 appeal Court requires any document to be produced or any witness to be examined to enable it to produce judgment, or for any other substantial clause.
27.As already pointed out, the defendant has already produced the exchange deed dated 07.08.1969 before the trial Court and according to the defendant, the said document was omitted to be marked. But a cursory perusal of the judgment would reveal that the learned trial Judge has framed a specific issue as to whether the exchange deed, dated 07.08.1969 alleged by the defendant was legally valid and after discussion, has given a finding that since the exchange deed is an unregistered document, the same is legally invalid and that it cannot be stated that the defendant got title to the suit property through the said document.
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28.As rightly contended by the learned counsel for the respondent, considering the legal position above referred, the trial Court ought to have received the said document, but on the other hand, refused to receive the same, as the same is inadmissible for want of registration.
29.Now, let us take the other documents sought to be received as additional evidence in I.A.No.8 of 2017 i.e., copies of Resettlement Register and patta.
30.The main contention of the defendant is that she has produced the said documents to prove that two lands owned by the defendant's father were given to the plaintiff's father in exchange to the present subject matter of the suit and that the revenue records were mutated in the name of the brother of the first plaintiff. It is their further case that though patta has already been produced before the trial Court, they have now only received the copies of Resettlement Register and patta issued to the first plaintiff's brother and hence, they have produced the same to prove that the exchange deed was acted upon.
31.Before entering into further discussion, it is necessary to refer to the legal position :
(i) AIR 1963 SC 1526 :
K.Venkataramiah Vs. A.Seetharama Reddy and others :
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16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the School were made available. It was vehemently urged by the learned Counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable "
us" to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but also for "'any other substantial cause." There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence "'to enable it to pronounce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other substantial cause" under R-27(1) (b) of the Code.
17. It is easy to see that such requirement of the 'Court to enable it to pronounce judgement or for any other substantial cause is https://www.mhc.tn.gov.in/judis/ 21/27 not likely to arise ordinarily unless some inherent lacuna or defect become apparent on an examination of the evidence. That is why in Parsotim's case (1), the Privy Council while discussing whether additional evidence can be admitted observed:-
"It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands,. some inherent lacuna or defect becomes apparent."
18.As the Privy Council proceeded to point out:-
"It may well be that the defect may be pointed out by a party, or that a party, may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands."
19. We are satisfied that in the present case the High Court allowed additional evidence to be admitted as it required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of Rule 27(1)(b) of Or. 41 of the Code. The contention that the decision of the High Court on the question of the respondent's age was vitiated by reason of it being based on inadmissible evidence, must therefore fail.
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(ii) 2010 (2) CTC 751 (Mad) :
B.Nemi Chand Jain and another Vs. G.Ravindran and others :
192. As stated above, 9 out of 12 documents sought to be filed as additional documents, relate to the events that happened after the disposal of the suit and hence Clauses (a) and (aa) are not attracted. But to fall within Clause (b) of Order XLI, Rule 27(1) CPC, the requirement should be that of the Court, either to enable it to pronounce judgment or for any other substantial cause. However, in K.Venkataramiah vs. Seetarama Reddy {AIR 1963 SC 1526}, a Constitution Bench of the Supreme Court held as follows:-
"It is well to remember that the Appellate Court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment' but also for 'any other substantial cause'. There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for 'any other substantial cause' under Rule 27(1)(b) of the Code."
193. If the above dictum of the Constitution Bench is applied, there can be no difficulty in arriving at the conclusion that even if the Court can decide the case with the evidence available on record, its hands are not fettered, to look into the additional evidence, by falling back upon the phrase "any other substantial cause"
appearing in Clause (b). This is permissible, if the Court, to borrow the words of the Constitution Bench, considers that in the interest of justice, something which remains obscure should be filled up so that https://www.mhc.tn.gov.in/judis/ 23/27 it can pronounce its judgment in a more satisfactory manner.
(iii) 2016 4 CTC 533 (SC) :
Union of India Vs. K.Lakshman and others ;
“37. Order 41 Rule 27 of the Code is a provision which enables the party to file additional evidence at the first and second appellate stage. If the party to appeal is able to satisfy the appellate Court that there is justifiable reason for not filing such evidence at the trial stage and that the additional evidence is relevant and material for deciding the rights of the parties which are the subject matter of the lis, the Court should allow the party to file such additional evidence. After all, the Court has to do substantial justice to the parties. Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in his favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal.”
32. It is settled law that even if a party, who sought to adduce additional evidence has failed to satisfy the first two conditions contemplated under Order 41 Rule 27 CPC, if the Appellate Court requires the said evidence and finds it needful to enable it to pronounce the judgment or for any other substantial cause, can very well receive the same. If the documents are required for doing real justice and for just decision of an appeal, the Appellate Court has discretion to take such document on record.
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33.It is also well settled that the requirement of the additional evidence as contemplated under clause (b) of the Sub Rule (1) of Rule 27 CPC must be of the Court and not of any party to the lis and if the Court is of the opinion that without such additional evidence it cannot pronounce the judgment, then the same can be received. The learned Appellate Judge, after referring to the factual aspects and the legal position, has specifically held that the documents in question are necessary for deciding the disputes involved in the Appeal, under Order 41 Rule 27 (1)(b) CPC.
34.On considering the entire facts and circumstances and in view of the settled position of law above referred, the decision of the Appellate Court in allowing the two applications and permitting the defendant to adduce further evidence and also permission to the plaintiff to adduce rebuttal evidence, if any , cannot be found fault with and this Court is in entire agreement with the same. Though the learned Appellate Court has permitted the defendant to exhibit the unregistered and unstamped exchange deed, it has not passed any order with respect to payment of stamp duty and penalty. In view of the settled legal position, the unregistered and unstamped document can be received in evidence to show the collateral purpose, provided stamp duty is paid with penalty. https://www.mhc.tn.gov.in/judis/ 25/27
35.Considering the above, this Court decides that the defendant is entitled to exhibit the exchange deed to show the collateral purpose, but on payment of stamp duty with penalty. Consequently, this Court concludes that with the above modification, these Civil Revision Petitions, which are devoid of merits, are liable to be dismissed.
36. With the above modification, the Civil Revision Petitions are dismissed. The Appellate Court is directed to receive the document in question i.e., exchange deed, only on payment of stamp duty with penalty. No costs. Consequently, connected Miscellaneous Petition is closed.
16.09.2021
Index : Yes/No
Internet : Yes/No
das
https://www.mhc.tn.gov.in/judis/
26/27
K.MURALI SHANKAR, J.
das
To
1.The Additional District & Sessions Judge/Special Court for E.C.Act Cases and NDPS Act cases, Pudukkottai.
2.The Inspector of Police, Ganesh Nagar Police Station, Pudukkottai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
CRP PD(MD).Nos.9 & 10 2021 and CMP(MD)No.91 of 2021 16.09.2021 https://www.mhc.tn.gov.in/judis/ 27/27