Madras High Court
Kaliyammal vs Ganapathi on 8 April, 2015
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.04.2015 CORAM THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR SECOND APPEAL(MD)No.629 of 2014 Kaliyammal ... Appellant/Respondent/Plaintiff Vs. Ganapathi ... Respondent/Appellant/Defendant Prayer:- Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 against the Judgment and decree dated 27.02.2013 passed in Appeal Suit No.122 of 2011 by the Sub Court, Pudukottai, reversing the Judgment and decree dated 31.03.2011 passed in Original Suit No.399 of 2006 by the District Munsif Court, Pudukkottai. !For Appellant : Mr.N.Balakrishnan ^For Respondent : Mrs.N.Krishnaveni :JUDGMENT
The respondent entered appearance through counsel in the SR stage itself. The submissions made by Mr.N.Balakrishnan, learned counsel for the appellant and Mrs.N.Krishnaveni, learned counsel for the respondent are heard.
2. The Judgments of the trial Court and lower Appellate Court and the connected records produced in the form of typed-set of papers are also perused and this Court paid its consideration to the same.
3. The plaintiff in the Original Suit in O.S.No.399 of 2006 on the file of the Court of District Munsif, Pudukkottai, who emerged successful, suffered a set back before the Appellate Court namely the Sub Court, Pudukkottai in Appeal Suit No.52 of 2008, as the learned Subordinate Judge, Pudukkottai, chose to set aside the decree granted by the trial Court on 30.01.2008 and remitted the matter back to the trial Court for fresh disposal, after giving an opportunity to the respondent herein/defendant to lead further evidence in the form of a document, the non-production of which, had led the trial Court to draw an adverse inference under Section 114(g) of the Indian Evidence Act, 1872. Even after such remand, the respondent herein/defendant did not produce the said document and once again suffered a decree in the hands of the trial Court, which was passed on 31.03.2011. Once again, the respondent herein/defendant approached the lower Appellate Court by preferring an appeal in Appeal Suit No.122 of 2011. This time during the pendency of the appeal, the respondent herein/defendant preferred an Interlocutory Application in I.A.No.334 of 2012 in Appeal Suit No.122 of 2011 under Order 41 Rule 27 of the Code of Civil Procedure, 1908 seeking permission to adduce additional documentary evidence.
4. The learned lower Appellate Judge, who adopted the procedure on the expected lines by hearing the application along with the appeal on merits, deviated from the path by not following the procedure for recording additional evidence as contemplated under Rule 28 of Order 41 of the Code of Civil Procedure, 1908. The result/consequence is the reversal of the Judgment of the trial Court and dismissal of the suit filed by the appellant herein/plaintiff.
5. As such, the appellant herein/plaintiff is forced to knock at the doors of this Court with the present Second Appeal on various grounds set out in the memorandum of grounds of Second Appeal. Though a number of questions have been formulated and incorporated in the grounds of memorandum of Second Appeal as substantial questions of law that have arisen in the Second Appeal, the learned counsel for the appellant relies on the following questions alone as the substantial questions of law based on which he would seek a Judgment from this Court. They are:-
?(i) Whether the lower Appellate Court is not wrong in law in allowing the application in I.A.No.334 of 2012 in A.S.No.122 of 2011 without considering the scope of Rule 27(1)(aa) and without relying on sub-rule (b)?
(ii) Whether the lower Appellate Court has committed an error in not following the procedure contemplated under Order 28 of Rule 41 of the Code of Civil Procedure, 1908 for recording the additional evidence and by simply marking the additional documents produced by the respondent herein/defendant and reading them into evidence??
6. Upon considering the submissions made on both sides and after perusing the copies of the Judgments of the Courts below and the relevant materials produced by the parties in the form of typed-set of papers, this Court is satisfied that the above said two substantial questions of law have arisen for consideration in this Second Appeal.
7. Before dealing with the first substantial question of law, it shall be convenient to deal with the second substantial question of law, to highlight the erroneous procedure adopted by the lower Appellate Court.
8. When the Appellate Court arrives at a conclusion that a party is to be permitted to adduce additional evidence, then automatically Rule 28 under Order 41 of the Code of Civil Procedure, 1908 gets attracted. As per the said rule, the Appellate Court itself can record such additional evidence or cause the evidence to be recorded by the Court from which the appeal has arisen or any other Court Subordinate to the Appellate Court and transmitted to the Appellate Court to be considered by the Appellate Court in the appeal. For better appreciation, Rule 28 of the Code of the Civil Procedure, 1908 is extracted hereunder:-
?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.?
9. Suppose the Appellate Court directs the trial Court or any other Court Subordinate to the appellate Court to take such evidence and send it to the Appellate Court, it should specify the points to which such evidence is to be confined. (Rule 29)
10. In the event of the appellate Court coming to the conclusion that the application seeking permission to adduce additional evidence under order 41 Rule 27 of the Code of Civil Procedure, 1908 there cannot be any objection for proceeding with the pronouncement of Judgment, incorporating the order of dismissal of the application in the Judgment itself. Unfortunately the lower Appellate Court, after coming to the conclusion that the respondent herein/defendant, who figured as appellant before the lower Appellate Court was to be granted permission to adduce additional evidence, did not follow the procedure contemplated under Rule 28 of Order 41 of the Code of Civil Procedure, 1908. It simply chose to mark the documents without being proved through a witness and thereby afford an opportunity to the opposite party to cross-examine such witness relating to the relevancy of the documents, contents of the documents and the nexus of the recitals with the points in issue.
11. The learned lower Appellate Judge has not even made a record to the effect that the parties did not raise any objection for marking those documents and reading them into evidence and on the other hand they had given consent for marking those documents as exhibits. Suppose such a record had been made, then the appellant herein could not have taken a plea that she had been denied an opportunity of questioning the admissibility and reliability of the document and the clinching nature of the recitals found in the document. On the other hand, the learned lower Appellate Judge chose to mark them as documents as exhibits on the side of the defendant and proceed with the pronouncement of Judgment with an observation that the appellant herein, who figured as respondent before the lower Appellate Court, did not raise any objection for such marking. Simply because a party against whom a document is sought to be pressed into service does not raise an objection for the reception of the document, it cannot be assumed that such party gives consent for the marking of the document which alone shall dispose with the formal proof of the document.
12. In the case on hand, the very fact that the learned lower Appellate Judge, after coming to a conclusion that the appellant before it (respondent in the Second Appeal) had to be permitted to adduce additional evidence, incorporated an order allowing an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908, in the Judgment itself and proceeded with the pronouncement of Judgment after marking those documents as exhibits on the side of the defendant, would make it clear that the appellant herein/defendant, who was the respondent before the lower Appellate Court did not get a fair opportunity of raising an objection for the marking of those documents without formal proof.
13. A meek attempt was made by the learned counsel for the respondent by advancing an argument that as against the order permitting the respondent herein to adduce additional evidence and as against the marking of the documents in the Appellate stage, the appellant herein ought to have preferred a revision and the failure to prefer a revision against such orders would disable and debar the appellant from raising the said question in the second appeal preferred against the decree of the lower Appellate Court.
14. The said contention can be brushed aside on the simple ground that all interlocutory orders need not be challenged by preferring revision. On the other hand, if such interlocutory orders are having any bearing on the final outcome of the case, it can be a ground for attacking the Judgment and Decree drawn in accordance with the Judgment. Hence, the said contention raised on behalf of the respondent is rejected, as it does not hold water in it. This Court, hereby, holds that the lower appellate Court adopted an erroneous procedure in incorporating the order allowing the application under Order 41 Rule 27 of the Code of Civil Procedure, 1908 in the judgment itself, marking the document as additional evidence in the absence of proof by consent and proceeding with the pronouncement of Judgment, causing prejudice to the appellant herein/plaintiff. The second substantial question of law is answered accordingly.
15. The first substantial question of law indicated supra is more vital. The narration of facts itself will make it clear that the learned lower Appellate Judge had crossed the recognised canons of law regarding granting of permission to adduce additional evidence in the Appellate Court. It is trite that a party in the Appellate stage cannot be permitted to adduce additional evidence in the appellate stage, unless such party is able to bring his case within the ambit of Rule 27(1)(a) or (aa) or (b). So far as sub-clause (a) is concerned, it is not the case of the respondent herein that the documents sought to be produced in the Appellate stage were refused to be admitted in evidence by the trial Court. As such, application of sub-Rule (a) stands ruled out. A party relying on clause (aa) should prove that not withstanding exercise of due diligence:- (i) such evidence was not within his knowledge, (ii) such evidence, though within his knowledge, could not be produced by him at the time when the decree appealed against was passed, despite of exercise of due diligence.
16. Here is a case, in which, the respondent/defendant, who bases the plea of defence on a particular document, namely a registered partition deed, dated 08.06.1931, did not produce the same before the trial Court and suffered a decree at the first instance. Since the trial court, among other things, drew an adverse inference against the respondent herein for the non- production of the said document in support of his defence case, in the first round of litigation before the lower Appellate Court, the appellant proved to be successful in persuading the lower Appellate Court to set aside the decree of the trial court and remand the suit to the trial Court in order to enable the respondent herein/defendant to produce the said document, non-production of which, had led on the earlier occasion to the drawal of adverse inference. Even after such remand, the respondent herein did not produce the document and once again suffered a decree in the hands of the trial court. But, in the second round of appeal preferred before the lower Appellate Court, the lower Appellate Court shown the utmost leniency towards the respondent herein, by allowing the application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908. The order does not say that the Court itself, relying on sub-clause (b) wanted the production of the document for the purposes stated therein. In any event, a party, who is conscious of the consequences of non- production of a vital document, cannot be permitted to fill up the lacuna after failing to avail the opportunities given thrice, first in the trial Court, second in the Appellate Court and third in the trial Court, after remand.
17. Though by a catena of cases it has been reiterated that the Appellate Court, dealing with an application under Order 41 Rule 27 of the Code of Civil Procedure, 1908, should hear the application along with the appeal on merits and consider the evidence to find out the applicability of any one of the clauses of Rule 27 under Order 41 of the Code of Civil Procedure, 1908, in none of the Judgments it has been stated that the order, either dismissing or allowing such application, should be passed simultaneously with the Judgment to be pronounced in the appeal or that such an order should be incorporated in the Judgment itself. The arrangement of the rules will make it clear that the normal procedure to be adopted by the Appellate Court, after coming to a conclusion that a party to the proceedings can be permitted to adduce additional evidence is to pass a separate order, thereafter, proceed with the recording of the additional evidence following the procedure contemplated in Rule 28 of Order 41 of the Code of Civil Procedure, 1908 and then pronounce a Judgment, taking into account the entire materials, including the additional evidence recorded under Rule 28 of Order 41 of the Code of Civil Procedure, 1908. Only in exceptional cases wherein the opposite party states no objection for allowing the application under Rule 27 of Order 41 of the Code of Civil Procedure, 1908 and at the same time expresses consent for marking the additional documentary evidence, without the necessity of examining any witness in formal proof of such document, and comes forward to advance arguments based on such additional documentary evidence also, there cannot be an objection for incorporating the order allowing the application under Rule 27 of Order 41 of the Code of Civil Procedure, 1908 in the Judgment in the appeal itself.
18. The learned lower Appellate Judge, besides narrating the serious objection raised by the appellant herein, held that the said documents could have been very well produced before the trail Court and the respondent herein/defendant, for the reasons best known to him, failed to produce those documents; that only after suffering a decree for the second time before the trial Court, he had chosen to come forward with the application seeking permission to produce those documents as additional evidence and that the said attempt was nothing but an attempt made to pluck the loopholes in the defendant's case. The learned lower Appellate Judge further proceeded with observing that neither of the parties advanced any argument that the production of the documents was very much necessary for rendering a full- fledged Judgment in the appeal before the lower Appellate Court. The learned lower Appellate Judge chose to incorporate a further observation that the lower Appellate Court was satisfied with the sufficiency of the evidence already on record. However, the learned lower Appellate Judge, expressed a diametrically opposite view in the last sentence of Paragraph No.11 that the documents could be admitted as additional evidence and the appeal could be considered in the light of the documents.
19. A reading of paragraph No.11 containing the deliberations of the lower Appellate Court regarding the grounds on which he decided to permit the production of the documents as the additional evidence will make it clear that the learned lower Appellate Judge, without properly applying his mind towards the provisions of the Code of the Civil Procedure, 1908, simply wanted to show indulgence to the respondent herein/defendant by allowing the application, much against the earlier recitals made in the very same paragraph. Hence, this Court is not in a position to give its stamp of approval to the order passed by the lower Appellate Court, which has been incorporated in the Judgment itself and this Court comes to the conclusion that first substantial question of law deserves to be answered in favour of the appellant and against the respondent and the said question is answered accordingly.
20. In view of the answers given to the substantial questions of law 1 and 2, this Court comes to the conclusion that the decree of the lower Appellate Court cannot be sustained and the same should be set aside. However, this Court deems it proper to remit the matter back to the lower Appellate Court with a direction to dispose of the appeal based on the evidence already on record, without taking into consideration the additional evidence in the form of documents marked as Exs.P.13 and P.14.
21. In the result, the Second Appeal is allowed in part and the decree of the lower Appellate Court, dated 27.02.2013 made in A.S.No.122 of 2011 is set aside. The appeal in A.S.No.122 of 2011 is remitted back to the lower Appellate for disposal based on the evidence already on record, without taking into consideration the documents marked as Exs.P.13 and P.14. The appeal should be disposed of within two months from the date of receipt of a copy of this Judgment. The appellant shall be entitled to refund of Court fees paid in the second appeal, as per rules. No costs.
08.04.2015 Index : Yes Internet : Yes ps To
1.The Sub Court, Pudukottai.
2.The District Munsif Court, Pudukkottai.
P.R.SHIVAKUMAR,J.
ps S.A(MD)No.629 of 2014 08.04.2015