Madras High Court
Selvaraj vs Ravichandran on 28 April, 2015
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 28.04.2015 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Second Appeal (MD) No.653 of 2014 and M.P.(MD)No.1 of 2014 Selvaraj ... Appellant VS 1. Ravichandran 2. Amutha 3. Jayaraman ... Respondents PRAYER: Second Appeal is filed under Section 100 C.P.C against the judgment and decree dated 01.04.2014, in A.S.No.96 of 2010, on the file of the I Additional Subordinate Judge, Trichirapalli, in reversing the judgment and decree dated 17.03.2010 made in O.S.No.83 of 2006, on the file of the District Munsif Court, Musiri. !For Appellant : Mr.K.Govindarajan ^For Respondents : Mr.R.Sundar :JUDGMENT
The defendant in the original suit, who emerged successful before the trial Court and suffered a step back before the lower Appellate Court, is before this Court with the present Second Appeal, challenging the decree of the lower Appellate Court dated 01.04.2014 made in A.S.No.96 of 2010, setting aside the decree of the trial Court dated 17.03.2010 made in O.S.No.83 of 2006 dismissing the suit.
2. The suit was filed by the respondents herein/plaintiffs for a declaration of their alleged title in respect of the well, electricity service connection, 5HP electric motor pumpset, compressor, wary and channel described as "B" schedule property in the plaint. The said claim was made, based on the alleged purchase made under a sale deed dated 30.11.1992, marked as Ex.A.4. The said claim was resisted by the appellant herein/defendant contending that the respondents herein/plaintiffs did not purchase half share in the well and other items described as "B" schedule property in the plaint and on the other hand, the entire property comprised in S.No.402/2 including the well was purchased by the appellant herein/defendant under Ex.B.13 dated 29.09.1997.
3. In this regard in Ex.A.4, while referring to the well in which undivided half share was conveyed to the respondents herein/plaintiffs, the Survey Number was noted as 402/10. According to the respondents herein/plaintiffs, the same was a clerical mistake and hence, it was corrected by a rectification deed dated 06.11.2002 marked as Ex.A.5.
4. The learned trial Judge, after trial, on an evaluation of evidence, dismissed the suit holding that the respondents herein/plaintiffs were not able to co-relate the property conveyed under Ex.A.4 with the suit well described in plaint "B" schedule. As against the decree of the trial Court, dated 17.03.2010, the respondents herein/plaintiffs filed the appeal before the lower Appellate Court in A.S.No.96 of 2010. In the said appeal, the respondents herein/plaintiff, who were the appellants before the lower Appellate Court, filed an interlocutory application in I.A.No.135 of 2013 under Order 41 Rule 27 of the Code of Civil Procedure Code for reception of additional evidence. The learned lower Appellate Judge, followed the correct procedure by considering the said application along with the evidence already available on record to find out whether the respondents herein, who were the appellants before the lower Appellate Court, had made out a case for adducing additional evidence in the appellate stage. Though the lower Appellate Court would have followed the proper procedure in taking a decision to allow the application, thereafter the lower Appellate Court, according to the submission made by the appellants in the Second Appeal herein, failed to follow the procedure contemplated under Rule 28 of the Code of Civil Procedure for recording the additional evidence in the appellate stage and simply referred the documents produced along with the application and took them into consideration as if they formed part of the evidence, to arrive at a conclusion that the trial Court was wrong in dismissing the suit. Hence, the appellant has raised it as a substantial question of law that has been arisen for consideration in the second appeal. Accordingly, this Court frames the following substantial question of law:
"Whether the judgment of the lower Appellate Court is vitiated because of the non-compliance with the requirements of Order 41 Rule 28 of the Code of Civil Procedure in recording additional evidence in the appellate stage."
5. Since the second appeal can be disposed of on the above said short point of law, the arguments advanced by Mr.K.Govindarajan, learned Counsel for the appellant and Mr.R.Sundar, learned Counsel for the respondents are heard, immediately after framing the above said substantial question of law. The judgment of the lower Appellate Court and the records that have been sent for from the Courts below are also taken into consideration.
6.By a catena of cases, the procedure for considering an application filed Order 41 Rule 27 C.P.C has been laid down by the Apex Court as well as the High Courts. For better appreciation, Order 41 Rule 27 is reproduced here under:-
"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 [(aa) the party seeking to produce additional evidence, establishes notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was passed, or)
(b) the Appellate Court may 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.
7.In Union of India vs. Ibrahim Uddin and Another reported in (2012) 8 SCC 148, the Supreme Court has made the following observation:
"An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved."
"The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the court."
8.In K.R.Mohan Reddy vs Net Work Inc. Represented through MD reported in (2007) 14 SCC 257, the Supreme Court made the following observation:
" It is now a trite law that the conditions precedent for application of clause (aa) of sub-rule (1) of Rule 27 of Order 41 is different from that of clause (b). In the event the former is to be applied, it would be for the applicant to show that the ingredients or conditions precedent mentioned therein are satisfied. On the other hand if clause (b) to sub-rule (1) of Rule 27 of Order 41 CPC is to be taken recourse to, the appellate court is bound to consider the entire evidence on record and come to an independent finding for arriving at a just decision; adduction of additional evidence as has been prayed by the appellant was necessary."
9.In a decision reported in (2013) 7 MLJ 471 (Jayamoorthy and others Vs.Palani and others), this Court has held as follows:-
?15.As per the above said rule, the additional evidence can be taken either by the appellate court itself or the appellate court can direct the lower court from which appeal has come or any other court subordinate to it to take evidence and transmit the same to the appellate court for being considered in the appeal. In either case, the appellate court has to indicate in its order allowing the application under Order XLI Rule 27, the points on which the additional evidence is to be adduced. A reading of the paragraph extracted from the judgment of the lower appellate court will show that the learned lower appellate judge, either in ignorance of the said provision or in utter disregard for the same, has omitted to follow the procedure. Therefore, this court does have no hesitation in coming to the conclusion that the learned lower appellate judge has committed an error in not following the procedure contemplated under Order 41 Rule 27 and Rule 28 CPC in dealing with an application seeking permission to adduce additional evidence in the appellate stage. This court also holds that the learned lower appellate judge has committed a grave error in law in simply marking the documents produced by the first respondent herein (appellant before the lower appellate court) giving them exhibit numbers and referring them in the judgment of the lower appellate court. It is obvious that the admissibility, genuineness and reliability of the documents produced along with the application filed under Order 41 Rule 27 were challenged by the opposite parties. That being so, the learned lower appellate judge should not have chosen to simply mark the documents as exhibits on the side of the plaintiff and proceed with the disposal of the appeal. The procedure for taking additional evidence in the appellate stage has not been followed. Hence this court answers both the substantial questions of law in favour of the appellants?.
10.The principle laid down therein is to the effect that an Appellate Court dealing with an application under Order 41 Rule 27 C.P.C should hear the application along with the appeal and consider the same together with the entire evidence adduced before the Court below to find out whether the case falls under sub clause (b) of Rule 27 (1) under Order 41 C.P.C.
11.Of course, the learned lower Appellate Judge has adopted the correct procedure in hearing the application with the Appeal. But it shall not be desirable to incorporate the order allowing such an application in the judgment itself. There cannot be any quarrel over the proposition that, if the Court comes to the conclusion that an application under Order 41 Rule 27 C.P.C deserves to be dismissed, the same can be incorporated in the judgment and the judgment in the appeal on merits may be pronounced. When the Court comes to the conclusion that such an application is to be allowed, the normal procedure is to pass a separate order, follow the procedure for recording additional evidence and thereafter decide the appeal after giving an opportunity to the parties to advance arguments based on the evidence already available and the additional evidence recorded in the appeal. This procedure can be dispensed with under only one circumstance, that is when the parties consent for not only allowing the application but also for marking those documents, without there being any necessity to examine any witness in proof or disproof of such document. In such cases alone, the additional documents can be marked as additional evidence and the Appellate Court can proceed with the pronouncement of the judgment incorporating the order allowing the application under Order 41 Rule 27 C.P.C and also the factum of marking those documents by consent and of hearing the arguments advanced on both sides on the basis of the additional documents also.
12.In the case on hand, though the appellants in the appeal before the lower Appellate Court have chosen to prefer application seeking leave of the Appellate Court to adduce additional evidence, it is brought to the notice of this Court that the application was resisted by the respondent in the appeal and still the lower Appellate Court chose to allow the application filed by the appellants under Order 47 Rule 27 C.P.C. It is also an admitted fact that the respondent in the appeal before the lower Appellate Court did not give consent for marking the documents without the necessity of examining the witnesses to prove those documents or establish the relevancy of those documents. Under such circumstances, the lower Appellate Court ought not to have ventured to incorporate the order allowing the applications in the judgment itself. The lower Appellate Court ought to have passed an order in the applications under Order 41 Rule 27 C.P.C separately and thereafter, followed the procedure contemplated under Rule 28 C.P.C for recording additional evidence. Rule 28 under Order 41 C.P.C. reads as follows:-
"28.Mode of taking additional evidence. - Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court."
13.As per Rule 28, such additional evidence can be recorded either by the Appellate Court itself or it can direct the Court from which the appeal has arisen to record the additional evidence and transmit the same. Apart from the trial Court, any Court subordinate to the Appellate Court may also be directed to record the additional evidence and transmit the same to the Appellate Court. While directing the trial Court or any other subordinate Court to do the job of recording the additional evidence, the lower Appellate Court has to specify the points to which the additional evidence is to be confined (vide Rule 29).
14.A perusal of the judgment of the lower Appellate Court, in the light of the admissions made on behalf of the parties regarding manner in which the additional evidence was recorded, this Court is of the considered view that the lower Appellate Court has not followed the procedure prescribed by the Rules under the Civil Procedure Code, 1908 for reception of additional evidence and for recording of additional evidence. The lower Appellate Court has chosen to reverse the finding of the trial Court in respect of the subject matter of the appeal. While coming to the conclusion to reverse the finding of the trial Court, the lower Appellate Judge also took into consideration the additional documents. Suppose, the respondents in this case are in a position to convince the Court that the finding of the lower Appellate Court has to be sustained de hors the additional documents, this Court can disregard the additional documents and proceed with the disposal of the Second Appeal giving a final solution to the problem. Unfortunately, that is not the case here. Therefore, this Court comes to the conclusion that the decree of the lower Appellate Court reversing the dismissal of the suit deserves to be interfered with and set aside. But the same will not lead to the conclusion that the preliminary decree of the trial Court shall be restored or confirmed. While setting aside the decree passed by the lower Appellate Court in A.S.No.96 of 2010, the appeal has got to be remitted back to the lower Appellate Court to pass a separate order in the application filed under Order 41 Rule 27 C.P.C and follow the procedure contemplated under Rule 28 C.P.C, for recording of additional evidence, in case, the lower Appellate Court decides to allow the said application. Thereafter an opportunity to the parties to advance arguments should be given and then the appeal shall be decided on merits. Accordingly, the substantial question of law is answered in favour of the appellants.
15.In the result, the appeal is allowed. The decree of the lower Appellate Court dated 01.04.2014 made in A.S.No.96 of 2010 is set aside. A.S.No.96 of 2010 is remitted back to the lower Appellate Court namely, I Additional Subordinate Court, Trichirappalli The lower Appellate Judge shall decide the appeal afresh and pass appropriate orders within a period of two months from the date of receipt of a copy of this judgment. The appellant/defendant is entitled to refund of court fee as per Rules. No costs. Consequently, M.P(MD)No.1 of 2014 is closed.
28.04.2015
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To
1.The Court of I Additional Subordinate Judge,
Trichirappalli
2. The Court of the District Munsif,
Musiri.
P.R.SHIVAKUMAR,J
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Second Appeal (MD) No.653 of 2014
and
M.P.(MD)No.1 of 2014
28.04.2015