Madras High Court
Service And Education For Village vs J.Thomas on 20 April, 2022
C.R.P(MD)No.524 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.04.2022
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P(MD)No.524 of 2018
and
C.M.P(MD)No.2289 of 2018
1.Service and Education for Village
Awareness and Improvement Society
(Madurai),
Represented through its Present Secretary,
John Britto.
2.Benedict Matriculation School,
Anaimalayanpatti,
Represented through Its Manager and Correspondent
P.A.Peter.
... Petitioners/
Respondents/Respondents
Vs.
1.J.Thomas
2.Kala @ Padmavathi ... Respondents 1 & 2/
Petitioners/Appellants
rd
3.P.Anbazhagan ... 3 Respondent/
3rd Respondent/3rd Respondent
PRAYER : Civil Revision Petition is filed under Article 227 of
Constitution of India against the fair and decretal order, dated,
1/7
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C.R.P(MD)No.524 of 2018
15.12.2017, made in I.A.No.21 of 2017 in A.S.No.15 of 2008 on the file
of Sub-Court, Uthamapalayam.
For Petitioners : Mr.V.George Raja
for M/s.Ajmal Associates
For Respondents : Mr.DD.Nallathambi
for R1 and R2
No Appearance
for R3
ORDER
The plaintiffs are the revision petitioner.
2. The plaintiffs filed a suit for declaration of title and permanent
injunction. The suit was decreed as prayed for. The counter claim filed
by the defendants was dismissed by the trial Court. Challenging the
same, the defendants 2 and 3 filed A.S.No.15 of 2008 before Sub-Court,
Uthmapalayam. Pending first appeal, the defendants 2 and 3 filed I.A.No.
21 of 2017 seeking permission of the Court to mark a certified copy of
the partition deed, dated, 12.05.1962, registered before Sub Registrar
Office, Uthamapalayam in S.R.O.No.1229 of 1962.
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C.R.P(MD)No.524 of 2018
3. The plaintiffs/decree holders filed a counter objecting to the
same on the ground that there is no reference about the said document in
the written statement and hence, the document cannot be received. That
apart, the plaintiffs/respondents have contended that the defendants have
not properly explained the reason for non filing of the said document
before the trial Court. After hearing both the parties, the appellate Court
had arrived at a finding that the proposed document, dated, 12.05.1962 is
referred to in Exhibit A.1 as one of the parent documents. Based upon
the said findings, the trial court allowed the application and permitted the
defendants/appellants to present the said document at the appellate stage.
Aggrieved over the same, the present Civil Revision Petition has been
filed by the plaintiffs.
4. The learned counsel for the petitioners had contended that there
is no pleading with regard to the proposed document in the written
statement and hence, the First Appellate Court ought not to have
accepted an application for the receipt of additional evidence. The
learned counsel for the petitioners further contended that the defendants
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.524 of 2018
have not satisfied the ingredients of Order 41 Rule 27 and hence, the
application should not have been allowed. He further contended that the
additional evidence application ought to have been heard along with the
main appeal and should not have been decided independently. He further
contended that if new documents are received in the appellate stage, the
plaintiff/decree holder will put it to great prejudice and it would take
away the vested rights of the plaintiffs.
5. Per contra, the learned counsel for the respondents/defendants
contended that the plaintiffs are tracing their title through documents
marked as Exhibits A.1 to A.3. According to the learned counsel for the
respondents, the proposed document is shown as one of the parent
document in Exhibit A.1, which has already been marked by the plaintiff.
Since the plaintiff himself traces his title through the proposed
documents, the plaintiff cannot have any grievance for marking the said
document. The learned counsel for the respondents further relied upon
the judgment of the Hon’ble Supreme Court reported in 2018 (9)SCC
445 to contend that additional evidence application should be decided
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C.R.P(MD)No.524 of 2018
independently and opportunity should be given to the other side to rebut
the evidence and hence additional evidence application cannot be taken
up along with the appeal. The Hon’ble Supreme Court has laid that after
receiving the additional evidence, the First Appellate Court has to strictly
follow the procedure contemplated on Order 41 Rule 28 of the Code of
Civil Procedure. The respondents in the appeal should be given ample
opportunity to let in oral or documentary evidence to the extent of
rebuttal of the additional evidence, that was produced by the appellant.
6. In view of the above said discussion, the order passed in I.A.No.
21 of 2017 is confirmed. The First Appellate Court is directed to strictly
follow the judgment of the Supreme Court as referred to supra. It is made
clear that the application under Order 41 Rule 27 has been allowed only
to the extent of marking the said document by examining one
Seenithevar. Allowing of the said application will not in any manner,
permit the defendants/appellants to examine any other witnesses. The
plaintiffs/respondents are entitled to let in oral or documentary evidence
only to extent of rebuttal evidence of the additional document marked.
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C.R.P(MD)No.524 of 2018
7. Accordingly, this Civil Revision Petition is partly allowed. No
costs.
20.04.2022
Index : Yes / No
Internet : Yes / No
gbg
Note :
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the advocate /
litigant concerned.
To
1.The Sub-Court,
Uthamapalayam.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.524 of 2018
R.VIJAYAKUMAR ,J.
gbg
Order made in
C.R.P(MD)No.524 of 2018
20.04.2022
https://www.mhc.tn.gov.in/judis
