D.Lenin vs T.Raji
2021 Latest Caselaw 2055 Mad

                                                                        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/