Madras High Court
D.Lenin vs T.Raji on 1 February, 2021
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
C.M.A.Nos.2371 and 2372 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:01.02.2021
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.Nos.2371 and 2372 of 2013
and
M.P.Nos.1,1 of 2013
D.Lenin .. Appellant in both CMAs
Vs.
1.T.Raji .. Respondent in both CMAs
2.R.J.Iyyanar .. Respondent in CMA.No.2371
of 2013
PRAYER in CMA.No.2371 of 2013 : Civil Miscellaneous Appeal is filed
under 43 Rule (1) (a) of Civil Procedure Code, against the judgment and
decree dated 25.03.2013, passed in A.S.No.12 of 2012 on the file of the
District Court, Tiruvannamalai, setting aside the judgment and decree dated
28.11.2011 passed in O.S.No.45 of 2009, on the file of the Additional
Subordinate Court, Tiruvannamalai and remanding the matter back to the
Trial Court.
Page No.1
https://www.mhc.tn.gov.in/judis/
C.M.A.Nos.2371 and 2372 of 2013
PRAYER in CMA.No.2372 of 2013 : Civil Miscellaneous Appeal is filed
under 43 Rule (1) (a) of Civil Procedure Code, against the judgment and
decree dated 25.03.2013, passed in A.S.No.13 of 2012 on the file of the
District Court, Tiruvannamalai, setting aside the judgment and decree dated
28.11.2011 passed in O.S.No.147 of 2008, on the file of the Additional
Subordinate Court, Tiruvannamalai and remanding the matter back to the
Trial Court.
For Appellants : Mr.K.Goviganesan
in both CMAs
For Respondents :M/s.Krishnaprasad
in both CMAs for M/s.Sarvabhauman Associates.
COMMON JUDGMENT
The appellant is the defendant in the suit in O.S.No.147 of 2008 filed by the plaintiff/respondent herein for the relief of declaration, permanent injunction and other consequential reliefs. Subsequent to the suit, the defendant/appellant filed another suit in O.S.No.45 of 2009 against this respondent and one Iyyanar for the relief of declaration and consequential enjoyment. Since the property involved in both suits are same, both suits were tried together and common judgment was passed by the trial Court. Page No.2 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.2371 and 2372 of 2013
2. For the sake of convenience, the parties are referred to as per their original ranks in O.S.No.147 of 2008.
3. Accordingly, the suit was filed by the respondent in O.S.No.147 of 2008 was dismissed and the suit was filed by the appellant in O.S.No.45 of 2009 was decreed.
4. Aggrieved by the order passed by the trial Court, this respondent preferred first Appeals in A.S.Nos.12 and 13 of 2012 respectively, before the District Judge, Tiruvannamalai. In that appeal, the respondent herein filed I.A.No.34 of 2012 under Order 41, Rule 27 of C.P.C., praying to permit him to receive the additional documents, stating that he was not given proper opportunity by the trial Court, to mark those documents which are vital in nature. This appellant also contested the said application. After full enquiry, the first Appellate Judge allowed the interlocutory application and the common judgment passed by the trial Court is set aside and the matter was remitted back to the trial Judge/Additional Subordinate Judge, Page No.3 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.2371 and 2372 of 2013 Tiruvannamalai, with a direction to dispose the case after giving opportunity to both parties to adduce additional evidence.
5. Aggrieved by that order, the defendant in O.S.No.147 of 2008 and plaintiff in O.S.No.45 of 2009 preferred this appeal.
6. The respondent also contested this appeal.
7. The brief facts of the case are as follows:
The plaintiff/respondent herein filed a suit for declaration and other reliefs in respect of the suit property situated in Meyyur Village, Tiruvannamalai Taluk in new Survey No.104/1A with four boundaries as vested in the plaint schedule. According to him, the suit property belongs to him by way of purchase from his brother Chinna Durai who insisted him to sell the property for which, he refused. Aggrieved by that he started to give trouble to the plaintiff and at this instigation, the defendant kidnapped the plaintiff and forcibly taken to Sub Registrar's Office, Tiruvannamalai and by out of force and coercion, the sale was executed from him in favour of the Page No.4 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.2371 and 2372 of 2013 defendant who is close relative of his brother Chinna Durai. On 07.07.2008, without any consideration, this plaintiff borrowed a sum of Rs.1,50,000/- and to satisfy the repayment, the property was transferred as per the pronote date as stated in the sale deed. Immediately, after they left from the clutches of the defendant, he gave the complaint to the police about the kidnap and forcible transaction. Thereafter, he filed the suit in O.S.No.147 of 2008 against the defendant to declare that the alleged sale deed was executed by fraud and undue coercion and also prayed to declare the plaintiff is the owner of the property.
8. The learned counsel for the defendant submits that prior to the sale deed, the plaintiff created shame and nominal document in favour of one Iyanar. So, in order to strengthen, he filed for a suit in O.S.No.45 of 2009, against this plaintiff and the said Iyanar.
9. Both suits were tried together. On the side of the plaintiff, he was examined as PW.1 and the said Iyanar was examined as PW.2 and other witness was examined as PW.3 and PW.4 and documents Ex.P1 to P10 were Page No.5 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.2371 and 2372 of 2013 marked and on the side of the defendants, DW.1 and DW.2 and documents Exs.D1 to D6 were marked and Commissioner report was marked as Ex.C1 and C2.
10. Based upon the oral and documentary evidence, the trial Judge dismissed the suit filed by this plaintiff and decreed the suit filed by the defendant.
11. Aggrieved by that, the plaintiff preferred an appeal before the Additional Subordinate Judge, Tiruvannamalai in A.S.Nos.12 and 13 of 2012. In that appeal, he preferred I.A.No.33 of 2012 under Order 41 Rule 27 of CPC. The defendant was also contested the petition.
12. Heard both sides. The first Appellate Judge remanded the matter to the trial Court by setting aside the judgment passed by the Additional Subordinate Judge, Tiruvannamalai. He also directed to complete the trial within a period of four months from the date of receipt of the case bundle and parties are given liberty to adduce additional evidence, if any, as they may be so advised.
Page No.6 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.2371 and 2372 of 2013
13. Aggrieved by that order, the defendant preferred this appeal.
14. The learned counsel for the appellant submits that the first appellate Court has no power to remand the entire case by setting aside the judgment passed by the trial Judge in the application filed under order 41 Rule 27 of CPC. Further he also argued that if the Appellate Judge satisfied that additional evidence is required for that purpose alone, the case may be sent to trial to record the evidence. Thereafter, the matter has to be sent back to the first appellate Court and based upon the additional evidence, the Appeal has to be disposed of. But the learned counsel for the appellant also pointed out that the first Appellate Judge ignored the essential ingredients as defined under Article 41 Rule 27 of CPC and remanded the matter to the trial Court as erroneous and prayed to set aside the said order.
15. On combined reading of all this provision of law reveals that if the Appellate Court satisfies that after the exercise of due diligence, such evidence was not within his enjoy or could not be produced at the time of trial, then the parties are permitted to adduce additional evidence, either in the Page No.7 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.2371 and 2372 of 2013 Appellate Court itself or to record the same, it can be sent only for that purpose to the trial Court.
16. By way of reply, the counsel for the respondents, based upon coercion, he filed O.S.No.147 of 1998 and with regard the said coercion, he gave a police complaint and FIR was lodged. The said FIR, the documents related to criminal proceedings were vital documents to prove his contention. So, he sought permission before the first Appellate Court in I.A.No.34 of 2012. He also mentioned crime No.726 of 2008, filed under Sections 323, 342, 363, 420, 506(ii) of IPC and the criminal case also conducted before the learned Judicial Magistrate No.I, Tiruvannamalai. So, he sought permission to mark those documents as additional evidence.
17. But in his affidavit, he has not stated the reason for production of those documents before the trial Court. But, on perusal of the plaint averments his cause of action falls upon the alleged kidnap coersion and the executive of sale deed. Hence to establish the case, those documents are just and necessary but for that purpose the entire judgment passed by the trial Page No.8 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.2371 and 2372 of 2013 Court need to be set aside. The documents may be marked and the first appellate Court based upon the evidence shall dispose the appeal on merits.
18. Therefore, the order passed by the first Appellate Judge set aside the Additional Subordinate Judge, Tiruvannamalai. Therefore, the respondent/plaintiff in O.S.No.147 of 1998 is permitted to adduce oral and documentary evidence and the defendant in that case is permitted to cross examine those witnesses, if any. Both the parties are permitted to adduce additional evidence before the trial Judge. After recording the evidence and the documents submitted by both parties, if any, the matter shall be sent to the first Appellate Court. The first Appellate Judge on considering the additional evidence adduced on the side of both parties shall dispose the appeals on merits as early as possible.
19. Considering the old pendency of the case, the respondent is directed to adduce the evidence as early as possible, without seeking any adjournment and trial Judge is also directed to record the evidence within a period of three months from the date of the order and send the matter to the first Appellate Court for disposal.
Page No.9 https://www.mhc.tn.gov.in/judis/ C.M.A.Nos.2371 and 2372 of 2013 T.V.THAMILSELVI,J.
ub
20. Accordingly, these Civil Miscellaneous Appeals are allowed and the order of the first appellate Court is set aside. Accordingly, the order passed by the trial Court is confirmed. No Costs. Consequently, connected Miscellaneous Petitions are closed.
04.02.2021 ub Index : Yes/No Speaking Order: Yes/No C.M.A.Nos.2371 and 2372 of 2013 04.02.2021 Page No.10 https://www.mhc.tn.gov.in/judis/