Madras High Court
M.V.Sundaram vs A.S.Perumal on 2 March, 2021
C.M.A.No.2854 of 2009
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
Vs.
1.A.S.Perumal
2.A.S.Jayavel
3.A.S.Loganathan .. Respondents
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
JUDGMENT
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
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C.M.A.No.2854 of 2009
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.
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C.M.A.No.2854 of 2009
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.
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C.M.A.No.2854 of 2009
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
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C.M.A.No.2854 of 2009
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
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C.M.A.No.2854 of 2009
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.
02.03.2021
rri
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.2854 of 2009
T.V.THAMILSELVI,J.
rri
C.M.A.No.2854 of 2009
and
M.P.No.1 of 2009
02.03.2021
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