Audhikesavan vs Ramani
2021 Latest Caselaw 14131 Mad

Citation : 2021 Latest Caselaw 14131 Mad
Judgement Date : 15 July, 2021

Madras High Court

Audhikesavan vs Ramani on 15 July, 2021

                                                       C.R.P.(P.D).No.4138 of 2018

         IN THE HIGH COURT OF JUDICATURE AT MADRAS

                          DATED : 15.07.2021

                                CORAM

         THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                     C.R.P.(PD) No.4138 of 2018 and
                         CMP.No.22785 of 2018

Audhikesavan                                     ...        Petitioner

                                   Vs

1.Ramani
2.Vasantha
3.Selvam
4.Gowri
5.Saravanan
Padma(deceased)
6.Varadhan
7.Palani
8.Gokila
9.Devadoss
10.Arumugam
11.Vijaya
12.Mari
13.Chandra
14.Parasuraman
15.Jayaraman
16.M/s.V.G.N.Pearl Square Properties Pvt Ltd.,
  Rep. by its Director – Mr.D.Pratheesh,
  No.333, Poonamallee High Road,
  Aminjikarai,
  Chennai 600 029                                ...        Respondents

1/8
                                                           C.R.P.(P.D).No.4138 of 2018



Prayer :- Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the fair and final order dated 01.10.2018
passed in IA.No.1099 of 2017 in AS.No.22 of 2016 on the file of the II
Additional District Judge, Thiruvallur at Poonamallee thereby permit the
petitioner to adduce additional evidence by examining the attestors of Ex.B1
in the appeal.
          For Petitioner       :   Mr.V.Ayapparaja
                                   for Mr.Bharath Kuma R

          For Respondents
             For R1 & 2        : Mr.M.Chidambaram
             R3 to 16          : No Appearance

                                   ORDER

This Civil Revision Petition is filed against the fair and final order

dated 01.10.2018 passed in IA.No.1099 of 2017 in AS.No.22 of 2016 on the

file of the II Additional District Judge, Thiruvallur at Poonamallee, thereby

dismissing the petition seeking permission to adduce additional evidence.

2. The petitioner is the eighth defendant and the respondents 1 and

2 are the plaintiffs. The respondents 1 and 2 filed suit for partition in respect

of 'A' and 'B' schedule properties. According to the petitioner, 'A' schedule

property belongs to their father and 'B' schedule property belongs to their

C.R.P.(P.D).No.4138 of 2018

mother. While their mother was alive, 'B' schedule property was bequeathed

in favour of the petitioner by the registered Will dated 26.07.1995, which

was marked as Ex.B1 before the court below. However, the petitioner could

not able to trace the attestors of the Will and as such he examined only

scribe of the Will as DW3. However, the court below without considering

the Will executed by their mother in favour of the petitioner and decreed the

suit as prayed by the respondents 1 and 2 herein. Aggrieved by the same, the

petitioner alone preferred appeal suit. While pending appeal suit, the

petitioner filed petition under Order 41 Rule 27 of CPC seeking permission

to adduce additional evidence by examining the attesting witness of the Will

executed by his mother.

3. On perusal of the affidavit filed in support of the petitioner

revealed that Ex.B1 was attested by two witnesses. But unfortunately, the

petitioner could not able to trace out the witnesses who attested in the Will

and produce before the court below to examine them. However, the

petitioner examined the scribe of the Will as DW3. But the court below did

not accept his evidence and decreed the suit. Now, the petitioner is able to

C.R.P.(P.D).No.4138 of 2018

find out the witness and seeks permission to examine one of the attesting

witness to prove the Will. It was dismissed and aggrieved by the same, the

present civil revision petition has been filed.

4. In this regard the learned counsel for the petitioner has relied

upon the judgment in the case of G.Venkatachalam Vs. A.P.Kuppraj & Ors.

reported in 2017 (4) CTC 32, wherein this Court held as follows:

27 In this connection, in Union of India vs. Ibrahim Uddin and another (2012)8 SCC 148), the Hon'ble Supreme Court has held as under:

''52. Thus, from the above, it is crystal clear that 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, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the orderbeing 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.''

C.R.P.(P.D).No.4138 of 2018

28 Keeping the above principles in our mind, let us approach the case at our hand.

29 The crux of the plaint averments is the existence of a cartrack in the property of the first defendant through which the plaintiff is alleged to have access to his property comprised in S.No.407/2, situate in a Kolathupalayam in Kodumudy in Erode District. In the impugned order, the learned first Additional Sub Judge, Erode has completely went into the merit of the appeal itself. The Appellate Court went beyond the scope of Order 41 Rule 27 C.P.C.

30 An aspect to be noted is that the Appellate Court has heard and disposed of the petition filed under Order 41, Rule 27 C.P.C. independently, separately. It should hear only along with main appeal. Then only the Court could read the evidence, record of the case and decide whether the new documents are necessary to take a decision in the appeal. The procedure adopted by the Appellate court is as against the principles governing Order 41, Rule 27 C.P.C., the ratio laid down by the Hon'ble Supreme Court in Union of India vs. Ibrahim Uddin and another (supra).

5. When the petitioner filed petition under Order 41 Rule 27 of

CPC, the appellate court should hear the application along with the main

appeal, and then only could read the evidence, record of the case and decide

C.R.P.(P.D).No.4138 of 2018

whether the new documents are necessary to take a decision in the appeal.

6. In the case on hand, the application was separately considered

by the first appellate court and dismissed for the reason that the Will

executed in favour of the petitioner was not proved as contemplated under

Section 65 of the Indian Evidence Act. Therefore, the above judgment is

squarely applicable to the case on hand. The first appellate court should

have read the evidence, record of the case and decide whether the new

documents are necessary to take a decision in the appeal.