Madras High Court
S.N. Hasan Abubucker vs Kottikulam St. Mohideen Pallivasal ... on 11 February, 2000
Equivalent citations: 2000(3)CTC193, (2000)IIMLJ461, 2000 A I H C 2376, (2000) 2 MAD LJ 461 (2001) 1 MAD LW 196, (2001) 1 MAD LW 196
ORDER
1. This Second Appeal is directed against the judgment of the learned Subordinate Judge, Thirunelveli in A.S.No.67 of 1993 confirming the judgment of the learned Additional District Munsif, Thirunelveli, in O.S.No.467 of 1982. The first defendant in the suit is the appellant in the above second appeal.
2. The suit was filed for a declaration that Melapalayam Rahmania High School, belonged to the plaintiff/ Pallivasal and that the first defendant should hand over the administration of the School to the plaintiff. According to the plaintiff, the High School belongs to Pallivasal and was established 80 years prior to the suit by collection of funds from the members of Jamath. The School is being conducted in the property at No.35 belonging to the plaintiff in the same street. Since then the members of Jamath had been providing funds for the administration of Pallivasal and also the School through the Pallivasal. For the purpose of administering the properties belonging to Pallivasal, a Committee was constituted (Therku Mohideen Pallivasal Mutheru Committee) and registered on 22.11.1958 and the said Committee is in charge of the administration of the properties including the school. When the school was at the stage of an elementary school, Hasan Abu Bucker, grandfather of the defendant was the Muthavalli and he was also the Manager and the Correspondent of the School. After his death, his son (father of the first defendant) Syed Thamim Sahib was appointed as the Manager of the School. During his period, the School was upgraded to a High School under the control of the Committee. He died in the year 1956 and the Educational Authorities recognised the first defendant as the Manager and Correspondent. The Committee was representing the Educational Authorities that the School should be registered as belonging to Pallivasal. By a communication dated 1.7.1981 the District Educational Officer, Tirunelveli, had informed the Committee to obtain appropriate orders from the Civil Court. A legal notice was issued in this context to the first defendant on 10.3.1982 to which by letter dated 15.3.1982 the first defendant sent a reply claiming that the School was his ancestral property and the plaintiff has no manner of any right over the school. Hence, the suit. Since the property was Wakf property, Wakf Board was impleaded as the second defendant. The first defendant has absolutely no right over the property. The rental amount of the building which was paid as a grant by the Government was paid to the plaintiff. The first defendant was bound to hand over the management of the school to the plaintiff.
3. The first defendant in his written statement denied the constitution of the Committee. There was no Secretary for the Committee and hence the suit as filed was not maintainable. There was a Sangam bearing the name of "Therku Mohideen Pallivasal Mutheru Committee" which became defunct due to the failure of the Committee to renew the registration and the registration was cancelled in 1977. Therefore, the suit filed by the Committee was not legally valid. There was no properly elected executive Committee. The School was not established by collection of funds by the members of Jamath and did not belong to the Pallivasal. From the year 1922 to 1936, the plaintiff's grand-father was managing and running the school in an excellent manner and in his personal capacity and after him the plaintiff's father looked after the administration. He also moved the Educational Authority to recognise his rights and by communication dated 27.7.1936, District Educational Officer also duly approved the plaintiff's father as the owner and manager of the school. Since 1936 the plaintiff's father was administering the school and in the year 1960 the school was upgraded as a Middle School After his death in the year 1976, the plaintiff was recognised as the Manager and the Correspondent with the consent of the other legal heirs, by order dated 18.11.1977. In the year 1978, the school was upgraded as High School. In the year 1973 after the Tamil Nadu Private Schools (Regulation) Act was passed, the plaintiff's father had filed W.P.No.2238 of 1975 before the High Court, contending that the provisions of the Act will not be applicable to the school. On its dismissal, a suit was filed before the City Civil Court, Madras, in O.S.No.4109 of 1977 and the suit was decreed in favour of the first defendant. Since the school was being run in the premises belonging to the Pallivasal, plaintiff's father was paying rent and he had also been issued with receipts and the plaintiff was continuing to pay the rent regularly. Ultimately, the School is functioning in a rented building and the High School was functioning in a premises of its own. During the year 1977, there were misunderstandings between Pallivasal and the first defendant and hence the Pallivasal had given a representation to the Educational Authorities claiming rights over the institution and the same was rejected fay the District Educational Officer by his order dated 1.2.1978. Thereafter, the present suit has been filed on the basis of frivolous allegations.The suit was also barred by limitation. Plaintiffs grandfather was never under the control of Pallivasal and he was never a Muthavalli of Pallivasal. There was no High School during the period of plaintiff's grandfather. Plaintiff's father was also not appointed as Manager by Pallivasal and the Committee had no control over the school. To the knowledge of the first defendant, the Committee itself was established only in the year 1948 and was registered in the year 1958. After 1977, the registration was not renewed. The School was not a Wakf property. Both the elementary and High Schools belong to the first defendant. The accounts relating to both the Schools are maintained separately and the Government grants are also issued separately. The grant is not being paid as rent to the plaintiff. Hence the plaintiff has no right or control over the school.
4. The Wakf Board, second defendant, in its written statement supported the plaintiff's prayer.
5. On a consideration of the said pleadings and the evidence, the trial Court held that the plaintiff was properly represented by its Secretary and also that the School belongs to the plaintiff/ Pallivasal and with the result, the suit was decreed as prayed for. On appeal by the first defendant, the appellate Court also confirmed the findings of the trial Court and dismissed the appeal after holding that the School belonged to Pallivasal. The appellant had also filed I.A.No.29 of 1993 under Order 41, Rule 27 C.P.C. for reception of certain documents as additional evidence stating that the documents are mostly issued by Educational Authorities and the said documents clearly establish the claim of the first defendant and that no prejudice would be caused to the respondent. The appellate Court however, rejected the said petition also. Hence, the present Second Appeal.
6. The appellant has also filed C.M.P.No.3835 of 1994 to admit certain documents as additional evidence which was ordered to be heard alongwith the Second Appeal.
7. I have heard both Senior Counsel representing the appellant and the respondents. Very detailed submissions were made by both sides quoting extensively from the evidence in an attempt to establish their respective contentions. From the very nature of the points which arise for consideration, it is very obvious that the issues relate only to appreciation of evidence of fact as to whether- the school was established by Pallivasal by collecting funds from the members of Jamath or whether the school was established and founded by grandfather of the plaintiff. Viewed from any angle the issue is only a factual issue and nothing more. The said findings are normally binding under Section 100 C.P.C. unless and otherwise there has been any omission to consider any vital evidence or appreciation of evidence is so un reasonable and perverse enough to warrant interference.
8. It is true that on certain aspects, the manner in which the evidence had been analysed by both the Courts below leaves much to be said. For instance, the plaintiff on whom the burden of proof lies to prove the allegation that the School was established 80 years ago had chosen to examine only one, witness namely, P.W.I, the Secretary of the Committee. No other independent witness had been examined. The quality of this witness does not inspire confidence for the following reasons:-
In order to project the plaintiff's case, in a very strong manner he has chosen to depose the facts and allegations contra to the very facts pleaded in the plaint. For instance, he would state that the first defendant was never a Manager or Correspondent of the School. The further more curious feature is that he would also state that if in the plaint it has been mentioned that the first defendant's grandfather was a Manager/Correspondent, it would be a wrong statement. All these statements of P.W.I are directly opposed to the pleadings in paragraph 4 of the plaint. He would also state that if in the present case, it has been mentioned that the School was established 80 years earlier, it would be wrong. He cannot say where the IX Standard and X Standard classes were being conducted, nor when the school was upgraded. He admits that there is a register of properties of Pallivasal (not reduced), but he has not seen it. Such is the quality of evidence of the person who claims to be the Secretary of the Committee and being the only person examined on the side of the plaintiff. Both the Courts below had chosen to ignore such glaring contradictions and important statements which conflicts with the basic facts pleaded in the plaint. The manner in which the Courts below have casually rejected Ex.B.I and B.4 filed on the side of the defendants cannot also be appreciated. Ex.B.I is a rental receipt issued by the Committee/plaintiff and P.W.I had in fact admitted issuing the same. The ground on which both the Courts rejected the receipt was that it was issued after the suit. The issue to be considered is as to whether it is possible that the Pallivasal would be receiving rents from the School, if really they are the owners of the school. Likewise, Ex.B.4 is a communication from the Educational Authorities sent in the year 1976 itself positively stating that as fortified from the records, they (Educational Authorities) have nothing to do with the Pallivasal as regards the administration of the school. While the trial Court did not bother to discuss about Ex.B.4, the appellate Court rejected it by merely stating that it will not advance the case of the first defendant.
9. Apart from the unsatisfactory discussion of the evidence by the Courts below what has weighed with me is the rejection of the additional documents sought to be filed before the appellate Court even though some of them, if true and proved, would conclusively clinch the issue. The very same documents have now been filed before this Court in C.M.P.No.3835 of 1994 under Order 47, Rule 27. C.P.C.
10. It is true that in the affidavit filed in support of the petition, the reason for not filing the documents before the trial Court has not been clearly stated and in the counter, the respondent had stated that no proper reasons have been given in the affidavit. It is true that no specific reasons have been stated in the C.M.P. before this Court for not filing them before the trial Court. But it refers to the rejection of the similar application namely, I.A.No.29 of 1993 filed before the appellate Court. In my opinion, it is a sufficient reason to be urged before an appellate Court as against the order of rejection of an application under Order 41, Rule 27 C.P.C. But it is equally true that we have to see whether the reason given before the lower Court was adequate and proper. A copy of the affidavit filed in support of I.A.No.29 of 1993 has not been forwarded to this Court alongwith the records. But a perusal of the judgment of the appellate Court shows that only one reason had been given by the appellant namely, that the party did not realise the importance of the said exhibits. It is true that as pointed out by the learned Senior Counsel for the respondents, the said reason cannot be "other substantial cause" for not producing them before the trial Court vide the judgment of the Supreme Court reported in Sunder Lal & Son v. Bharat Handicrafts Pvt. Ltd., . In considering whether the additional evidence shall be permitted or not, it has been repeatedly held that the reason for permitting the additional evidence should be to subserve the interest of justice and no prejudice should be caused to the opposite party. Of course, it has to be ensured that proper reasons are given for the non-production at the stage of trial or the Court may require additional evidence to pronounce or in the interest of justice, the lacuna or facts which remain uncertain or obscure should be filled up. The judgment of the Supreme Court reported in Sunder Lal & Son v. Bharat Handicrafts Pvt. Ltd., , dealt with the factual background of an attempt which was made to introduce new evidence at the stage of Supreme Court and apart from the unsatisfactory reason given for receiving the additional evidence. The Court also did not see any necessity for additional evidence to enable the Court to pronounce the judgment nor was any substantial issue was made out.
11. At this juncture, it would be relevant to point out that one of the factual issues which arise for consideration is as to whether the Committee was receiving rental amounts from the School as contended by the first defendant, which was disputed by the plaintiff. In fact, Ex.B.I rental receipt was filed by the first defendant and the same was rejected by the Courts below on the ground that the receipt was subsequent to the filing of the suit. Now a perusal of the documents sought to be introduced as additional evidence reveals that there are two rental receipts (Document Nos.17 and 29) and also two communications from the plaintiff to the defendant (Document Nos.2 and 24) to vacate the premises and hand over the premises to them for their own use and occupation. These documents should of course be proved in accordance with laws . But on the face of some of those documents and if they are accordingly proved, it will go a long way to establish the real fact and bring to light the truth of the matter. The ultimate aim of a judicial proceeding is to render justice and technicalities including under Order 41, Rule 27 C.P.C. are only hand maids of justice and it is not possible for the judicial mind to shut out or close its eyes when an important piece of evidence is brought to its notice. It is in this context, the Supreme Court had in appropriate cases given liberal interpretation of the requirements under Order 41, Rule 27 C.P.C. both in the context of the requirement by the Court to have the additional evidence or any other substantial cause. A Constitution Bench of the Supreme Court held in K.Venkataramiah v. Seetharama Reddy, as follows :-
"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 additional evidence "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."
12. In an earlier judgment also another Constitution Bench of the Supreme Court in State of U.P. v. Manbodhan Lal, held that though additional evidence should not permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case, the position was different where the appellate Court itself requires certain evidence to be adduced in order to enable the Court to do justice between the parties.
13. In Kamala Ranjan v. Baijnath, also the Supreme Court has held that where the appellate Court allows additional evidence to be given in order to clear up certain matters and for the purpose of enabling it to come to a proper decision on the point, the matter would be fully covered by Order 41, Rule 27 C.P.C. and no objection can be taken to the course adopted by the appellate Court.
14. In Syed Abdul Khader v. Rami Reddy, , the Supreme Court was faced with an order of the High Court admitting the additional evidence on the ground that the Court requiring the evidence so as to enable it to pronounce a judgment and the Supreme Court upheld the order of the High Court.
15. Therefore, in the present case, the nature of the additional evidence placed before the Court is such that receiving them would be in the interest of justice to clear up the obscure areas of evidence and it would be undoubtedly a ground on which the appellate Court ought to have permitted reception of such evidence instead of having adopted a hyper-technical approach. The appellate Court having commented and rejected Ex.B.I, rental receipt as being appellate Court ought to have entertained the said additional evidence instead of rejecting it in the same breath.
16. Therefore, on an overall consideration I am inclined to feel that the appeal requires to be remanded not only for proper appreciation of evidence, but also to enable both the parties to adduce additional evidence for which purpose the appellate Court shall also permit the examination of witnesses. Both the parties are at liberty to adduce evidence in support of the mutual contentions on the basis of which the lower appellate Court would dispose of the appeal on merits. C.M.P.No.3835 of 1994 is closed with liberty to the appellant to file documents in evidence before the appellate Court subject to their relevancy and admissibility. The originals of the documents filed by the appellant shall be returned to the counsel for the appellant.
17. In the result, the Second Appeal is allowed and remanded to the lower appellate Court for disposal in accordance with above directions, within a period of three months from the date of receipt of a copy of this judgment. No costs.