M.V.Sundaram v. A.S.Perumal

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 02.03.2021

CORAM:

THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI C.M.A.NO.2854 OF 2009 AND M.P.NO.1 OF 2009 M.V.Sundaram .. Appellant/1st Respondent/Plaintiff Vs.

1.A.S.Perumal ...1st Respondent/Appellant/1st defendant 2.A.S.Jayavel 3.A.S.Loganathan .. Respondents/Respondents 2 & 3/ Defendants 2 & 3 PRAYER : Civil Miscellaneous Appeal is filed under Order XLIII Rule (i)(u) of Civil Procedure Code, against the order of the learned Subordinate Judge Ranipet dated 30.06.2009 made in A.S.No.50 of 2007 remanded the order of the learned District Munsif, Arakkonam, dated 14.10.2006 made in O.S.No.410 of 2004. For Appellant : Mr.G.Jeremiah For Respondents: Mr.S.Parthasarathy

J U D G M E N T

The appellant herein is the plaintiff in O.S.No.410 of 2004, who filed a suit against the respondents herein claiming a relief of permanent injunction and other consequential reliefs.

2. The respondents/defendants contested the suit.

3. After full trial, the suit was decreed in favour of the appellant. Aggrieved by the order, the respondents herein preferred the appeal in A.S.No.50 of 2007. The appeal is also contested by the plaintiff.

4. During the pendency of the appeal, in I.A.No.87 of 2004 filed by the defendants, to produce the kist receipts additional documents contested that they are in possession of the suit properties taking into account the kits receipt, the First Appellate Court concluded that the judgment given by the Trial Court is set aside and remitted the entire case back to the trial Court with a direction to the respondents, to produce the kist receipts before the District Munsif Court, Arrakonnam, and to conduct fresh trial. Accordingly, the matter was remanded to the District Munsiff Court with a direction to fresh trial. Aggrieved by the order the appellant / plaintiff approached this Court, to set aside the A.S.No.50 of 2007.

5.

The question of law that arises for consideration is as to, (i) whether the First Appellate Judge erred in remanding the entire case back to the Trial Court by set aside the Lower Court decree without implementing the Order 41 Rule 27 CPC?

ORDER XLI Rule 27 which reads as follows:

27. Production of additional evidence in Appellate Court-(1) The parties to an appeal shall not be entitiled 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 that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the Court may

allow such evidence or document to be produced, or witness to be examined.

(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

6. As per the above Provision of Law, the Appellate Court is empowered to receive the additional evidence if he satisfied that after exercising of due deligent, he could not able to produce before the Trial Court. Coming to the facts in the instant case, the suit was filed in the year 2004 by this appellant for permanent injunction and other consequential reliefs. After full contest, the trial Court granted permanent injunction relief, not to cause interference from the peaceful possession and enjoyment of the suit property by the appellant/ plaintiff therein. Aggrieved by the order, the appeal in A.S.NO.50 of 2007 was filed by the respondents in the year 2007.

7. During the pendency of the appeal, in the year 2008 which was filed by the respondents/defendants prayed to receive the two kist receipts as additional evidence. Immediately, the First Appellate Court remanded the entire matter to receive those documents by the Trial court and to dispose of the case by conducting fresh trial, and also setting aside the judgment passed in O.S.No.410 of 2004. As rightly pointed out by the appellant counsel the respondents herein/defendants ought to have stated the reason for non production of those documents before the Trial Court. But they have not submitted any reason, and without considering this aspect, the First Appellate Court erroneously set aside the judgment passed by the trial Court and remanded the matter for fresh trial. Moreover as per the Order 41 Rule 27 of CPC, the appellate Court has empowered to receive the documents, so the First Appellate Court itself entitled to receive those documents and disposed of the appeal on merits.

8. Accordingly, the order passed by the learned Appellant Judge in A.S.No.50 of 2007 is set aside. The First Appellate Court is directed to receive the additional documents like, kist receipt filed by the respondents herein / defendants, in accordance with law, and to dispose of the First Appeal in A.S.No.50 of 2007, on merits. Therefore, the order passed by the First Appellate court in A.S.No.50 of 2007 is set aside.

9. Accordingly, the Civil Miscellaneous Appeal is allowed and the order passed by the First Appellate Court in A.S.No.50 of 2007 is set aside and directed the First Appellate, Sub-Judge, *Arakkonam, to dispose of the case, on merits, by receiving the additional documents from the defendants / respondents herein, within a period of three months from the date of receipt of a copy of this judgment. Consequently connected Civil Miscellaneous petition is closed. No Costs. Sd/- Assistant Registrar(I) Dated : 27/09/2021 * Corrected as per order of this Court, dated 27/10/2021.

Sd/- Assistant Registrar(I) Dated : 17/11/2021 //True Copy// Sub Assistant Registrar rri To *To be substituted

1. The Subordinate Judge, to the order Ranipet.

already despatched on

2. The District Munsif, 26/10/2021 Arakkonam.

+1cc to Mr.S.Parthasarathy, Advocate, S.R.No.13009 C.M.A.No.2854 of 2009 and M.P.No.1 of 2009 PM(CO) CB(29/09/2021) RLP(25/11/2021)