Madras High Court
Angammal vs Ramu Ammal on 24 July, 2018
Author: M.V.Muralidaran
Bench: M.V.Muralidaran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 24.07.2018 CORAM THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN C.R.P.(PD)(MD) No.1332 of 2016 and C.M.P.(MD) No.6354 of 2016 1. Angammal 2. Karupasamy ... Petitioners/Respondents/Respondents -vs- 1. Ramu Ammal 2. Lakshmi Ammal 3. Ganesan 4. Shanmugasamy 5. Ganesa Perumal 6. Chellamuthu 7. Latha Boobathi 8. Gomathi ... Respondents/Petitioners/Appellants Prayer: Civil Revision Petition filed under Article 227 of Constitution of India praying to allow the Civil Revision Petition and set aside the Fair and Decreetal order dated 31.08.2015 made in I.A.No.148 of 2014 in A.S.No.16 of 2013 on the file of the Sub-Court, Kovilpatti. !For Petitioners : Mr.A.Arumugam For M/s.Ajmal Associates ^For R1 & R3 to R8 : Mr.S.Muthumalai Raja For R2 : Died :COMMON ORDER
The revision petitioners are the defendants in O.S.No.26 of 2010 on the file of the District Munsif Court, Vilathikulam and in the suit, the respondents/plaintiffs herein sought for declaration, etc., and the suit was dismissed, against which, the respondents/plaintiffs had preferred an appeal in A.S.No.16 of 2013 on the file of the Sub-Court, Kovilpatti. During pendency of the appeal, the appellants / respondents herein took out an application in I.A.No.148 of 2014 for reception of documents and the said application was allowed by the First Appellate Court on the ground that the documents specified by the appellants / respondent herein are essential to decide the case and challenging the same, the revision petitioners/respondents are before this Court.
2. It is the main case of the revision petitioners that the order of the First Appellate Court is not sustainable in the absence of disclosure of averments in the Appeal grounds, relating to the documents to be received and therefore, the appellant cannot be allowed to introduce a new case through additional evidence. The appellants also did not specify reasons as to why those documents were not marked before the Trial Court and as such, the permission given by the Court for adducing additional evidence, that too, in an appeal stage is unheard of.
3. The revision petitioners state that the main intention of the appellants is to drag on the proceedings and they, having not deposed anything about the documents during trial, have now been asking for marking of the documents, which is nothing, but an abuse of process of law. There is no pleadings raised with respect to the subject documents in the appeal and as such, seeking permission to mark the documents is against the provisions of law.
4. The revision petitioners further state that the issue relating to reception of documents can be conveniently decided at the time of pronouncing judgment in the main appeal and according to them, the documents 3 and 4 were created documents. The documents sought to be marked are unnecessary and irrelevant to the case on hand and as such, the act of the Trial Court in allowing the application filed by the appellants, that too, without giving any explanation thereof is highly unjustifiable. Therefore, it is prayed for dismissal of the civil revision petition.
5. Learned counsel for the respondents / appellants herein has strenuously contended that the documents sought to be produced are very vital to the issue on hand so as to render a definite decision, as the sale deed dated 13.03.1933 was not adduced at the time of trial in the suit. If the said sale deed along with other vital documents have not been marked, much prejudice would caused to them. It is further stated that it is mandate on the part of the Court to ensure the extension of balance of convenience on both sides and therefore, the First Appellate Court had rightly considered the matter in favour of the appellants and the orders need no intervention by this Court.
6. Heard the learned counsel on either side and also perused the material documents available on record.
7. It is the claim of the respondents/appellants that they settled in Kerala for their livelihood and when they returned to their native place, the subject documents, namely, sale deed, VAO's certificate of their possession were found mixed up with some other documents and therefore, it is absolutely necessary to mark those documents. On the other hand, it is the submission of the petitioners herein that when no ground was raised in the appeal and in the absence of any direct connection of the documents with the present case, the marking of documents can merely be construed as a futile exercise.
8. Further, the learned counsel appearing for the petitioners has produced the judgement of the Hon'ble Supreme Court in the case of Union of India vs. Ibrahim Uddin and another reported in (2012) 8 SCC 148, wherein, in Paragraphs No.52, it has been held as follows:
?52.Thus, from the above,it is crystal clear that an application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record,the Court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, the application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non- application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/ inexecutable and is liable to be ignored?.
9. As per the ratio laid down by the Hon'ble Supreme Court in the case (cited supra), when an application is filed under Order 41 Rule 27 r/w Section 151 of C.P.C in the appeal stage for receiving additional documents, the Appellate Court should hear the said application along with the appeal and the application should not be heard independently.
10. In view of the settled proposition of law, this Court is of the view that there is force in the contention raised by the petitioners that the Court ought to have heard the application along with the pending appeal. Hence, there is no second opinion than the one that the order of the Court dated 31.08.2015 is liable to be set aside.
11. In the result,
a) this Civil Revision Petition is allowed and order dated 31.08.2015 made in I.A.No.148 of 2014 in A.S.No.16 of 2013 by the learned Sub-Judge, Kovilpatti, is hereby set aside and the matter is remanded back to the learned Sub-Judge, Kovilpatti for deciding the matter afresh;
b) the Appellate Court is directed to pass appropriate orders in I.A.No.148 of 2014 along with the appeal in A.S.No.16 of 2013 within a period of six weeks from the date of receipt of a copy of this order without giving any unnecessary adjournment to either parties and the parties shall cooperate for speedy disposal within the time stipulated above;
c) It is made clear that in case the Appellate Court permits the filing of additional documents by the respondents/appellants, then fair opportunity should be given to the petitioners/respondents in the appeal to adduce evidence in respect of the additional documents either before the Appellate Court itself or before the Trial Court on remand.
No costs. Consequently, connected miscellaneous petition is closed.
To:
1. The Sub-Judge, Kovilpatti.
2. The Record Keeper, Madurai Bench of Madras High Court, Madurai.
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