Madras High Court
O.N.Raju ... Respondent/ vs K.Krishnan on 24 March, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CMA No. 2189 of 2018
And
C.M.P.No. 17054 of 2018
O.N.Raju ... Respondent/Plaintiff/Appellant
Vs
K.Krishnan
... Appellant/Defendant/Respondent
Prayer: Civil Miscellaneous Appeal filed under Order 43 Rule (1)(U) of
the Civil Procedure Code, against the Judgment and Decree dated
06.08.2018 made in A.S.No. 33 of 2017 on the file of Sub Court, Conoor,
remanding the matter back in O.S.No. 68 of 2008 on the file of District
Munsif Court, Kotagiri.
***
For Appellant : Mr. R.Krishna Prasad
for M/s. Sarvabhauman Associates
For Respondent : Mr. Naveen Kumar Murthi
https://www.mhc.tn.gov.in/judis
JUDGMENT
Civil Miscellaneous Appeal has been filed questioning the
Judgment dated 06.08.2018 passed by the learned Sub Judge, Coonoor, in
A.S.No. 33 of 2017 which Appeal Suit had been filed by the defendant in
O.S.No. 68 of 2008, which suit had been decreed by the District Munsif,
Kotagiri, by Judgment dated 10.11.2018.
2. O.S.No. 48 of 2002 was filed originally before the District
Munsif, Kotagiri, by K.Krishnan against the defendant O.N.Raju, seeking
a Judgment and Decree that the plaintiff is the absolute owner of the plaint
schedule property and for consequential injunction restraining the
defendant from interfering with peaceful possession. There were two
items of suit properties. The 'A' schedule property measured 38 16 acres
and out of that total extent the land conveyed was 0.13 cents situated in
Denad Village in S.No. 74/2A1 in Kotagiri, Nilgiris District. The 'B'
schedule property measured 4.74 and out of that total extent the land
conveyed was 0.07 cents and it was also situated in Denad Village in
S.No. 72 again in Kotagiri, Nilgiris District.
3. In the plaint, it had been stated that the properties originally
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belonged to one J.Matha Gowder, the father of the vendor of the plaintiff.
He was in possession and enjoyment of the suit property along with other
family properties. It then came to be possessed by the joint family
constituting the vendor of the plaintiff J.M.Krishnan and his two brothers
J.M.Nanjan and N.M.Bellan. The said J.Matha Gowder, the original
owner died in the year 1985. Thereafter, J.M.Nanjan the brother of the
vendor of the plaintiff, also passed away in the year 1995. There was a
partition between J.M.Krishnan and J.M.Bellan on 03.09.1994. The
plaintiff claimed that he become the absolute owner of the suit properties
by virtue of two sale deeds both dated 07.12.2001 registered as Document
Nos. 1562 & 1702 of 2001 respectively before the Sub Registrar, Kotagiri
and executed by J.M.Krishnan.
4. According to the plaintiff, the defendant claims to have
purchased the property from J.M.Bellan, the brother of J.M.Krishnan.
5. In view of this peculiar situation, wherein the same properties
had been sold to the plaintiff and the defendant by two brothers acting
independently, the plaintiff was forced to lodge a complaint before the
jurisdictional police. There were two separate sets of sale deeds with
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respect to the same properties. One conveying the properties to the
plaintiff and the other conveying the properties to the defendant. The
vendor of the plaintiff was J.M.Krishnan and the Vendor of the defendant
was J.M.Bellan. Naturally, the police refused to interfere and claimed
that the entire issue was civil in nature. The plaintiff was therefore
necessitated to institute a suit for declaration of title and for permanent
injunction.
6. The defendant O.N.Raju, had filed a written statement along
with counter claim. Provision for filing a counter claim is under Order 8
Rule 6(A)(i) CPC. Quite apart from denying the averments made in the
plaint, the defendant further stated that after a family partition, the
properties which has been described in the suit schedule had been actually
allotted to J.M.Bellan, who had executed a sale deed in favour of the
defendant and that, the sale deed contained the description of the
properties with specific boundaries and, the sale deed was executed on
06.11.2001. It was also stated that the plaintiff's vendor J.M.Kirhsnan had
also confirmed that particular transaction. It was also asserted that the
defendant was in physical possession of the suit properties. The
observation of the plaintiff that he had purchased the properties was
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disputed and denied by the defendant in the written statement. Since the
defendant claimed to be in possession, the written statement also
contained a counter claim claiming the relief of permanent injunction
against the plaintiff.
7. This necessitated, a reply to be filed by the plaintiff. The Civil
Procedure Code provides filing of a reply to a counter claim as a matter of
right. A reply was filed by the plaintiff. However, the plaintiff then chose
to withdraw the suit in O.S.No. 48 of 2002.
8. Once that plaint had been withdrawn, the counter claim
necessarily had to be examined and issues had to be framed. This counter
claim on withdrawal of O.S.No. 48 of 2022 was numbered as O.S.No. 68
of 2008.
9. On the basis of the averments made therein, the parties went to
trial before the District Munsif, Kotagiri. The following issues were
framed for trial:-
(i) Whether the sale deed dated 07.12.2001 is valid, binding on the
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parties?;
(ii) Whether the suit properties were still not partitioned?;
(iii) Whether the plaintiff / in effect the defendant in O.S.No. 48 of
2002 / counter claim / plaintiff in O.S.No. 68 of 2008 was entitled for the
relief of permanent injunction?; and
(iv) To what other reliefs, the parties are entitled to?
10. The parties were invited to graze the witness box. Witnesses
were examined and documents were marked.
11. On the basis of the available evidence, the District Munsif
proceeded to answer the issues. He took up as the first issue for
consideration, the sale deed dated 07.12.2001 and with respect to that
particular issue had further examined Ex.A-3, which was the sale deed
dated 31.03.2003. That particular sale deed related to S.No. 74/2A1
measuring a larger area of 38 16 acres out of which 0.50 acres were
claimed to have been conveyed. The District Munsif Court observed that
the said 0.50 acres had been dealt with on 04.10.1995 by way of sale. It
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had therefore been stated that when there were no properties available in
the particular survey number. J.M.Krishnan, who was the vendor of the
original plaintiff, could not have conveyed any property much less
property by way of sale deed dated 07.11.2001. In view of that particular
observation, the Court answered the issue against the plaintiff in O.S.No.
48 of 2002.
12. Thereafter, the District Munsif, examined the third issue with
respect to permanent injunction and found that the counter claimant was in
possession. In this connection, the District Munsif also observed that a
Judgment had been passed in earlier suits wherein the legal representative
of the J.Matha Gowder, J.M.Krishnan had sold the property and also
sought partition and in that particular suit, it had been found that the
plaintiff in O.S.No. 48 of 2002 was not in possession. The fact that the
vendor of the plaintiff in O.S.No. 48 of 2002 did not have any property to
convey in S.No. 74/2A1 was again reasserted by the District Munsif.
Finally, it was found that the defendant in that particular suit/Plaintiff in
O.S.No. 68 of 2008 was in possession and therefore, the counter claim
was allowed and a decree was passed in the counter claim granting
permanent injunction.
13. Questioning this particular Judgment granting permanent
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injunction in the counter claim, A.S.No. 33 of 2017 had been filed. It
could be presumed that the plaintiff in O.S.No. 48 of 2002, who in virtue
of the counter claim being filed became the defendant in O.S.No. 68 of
2008 was the appellant before the First Appellate Court. He challenged
the grant of decree of permanent injunction on the basis on the counter
claim restraining him from disturbing the peaceful possession of the
counter claimant. The Judgment rendered in the said Appeal is the subject
matter of the present Civil Miscellaneous Appeal.
14. To recall the facts, O.S.No. 48 of 2002 had been filed by
K.Krishnan against O.N.Raju. He sought declaration of title and
permanent injunction with respect to the properties described in the suit
schedule. Along with the plaint, ten documents had also been filed. On
receipt of suit summons, written statement was filed by the defendant
O.N.Raju.
15. O.N.Raju also filed a counter claim claiming permanent
injunction over the very same properties. Along with the counter claim,
he also filed five documents.
16. For some reason, neither of the counsels here are directly aware
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nor have informed to this Court. K.Krishnan, the plaintiff in O.S.No. 48
of 2002 withdrew the suit. The effect of withdrawal of the suit indicates
that the plaintiff, K.Krishnan, had no further intention of prosecuting the
relief sought in the plaint. This would also imply that the plaint was
withdrawn and consequently, the documents filed along with the plaint
were also withdrawn.
17. Pleadings consists not only the plaint but also the documents
filed along with the plaint. Both are considered as one set, as pleadings
filed before the Court. In support of the averments made in the plaint,
documents are filed and have to be read along with the averments made in
the plaint.
18. A plaint can still survive without supporting documents and
leave and liberty can be granted and is also available in the statute for
documents to be filed subsequently, if necessary cause is shown as to why
they had not been presented along with the plaint. But there cannot be an
independent adjudication of a set of documents in the absence of
pleadings, which were the basis for which the documents were originally
filed. The documents are claimed to be relevant by the plaintiff verifying
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the plaint and also necessary to prove the averments in the plaint. Without
any averment or pleadings, the documents cannot stand alone. They will
only be writings in paper without any evidenciary value.
19. When K.Krishnan, the plaintiff in O.S.No. 48 of 2002 had taken
a concious decision to withdraw the plaint, it only means that he had
withdrawn all averments made in the plaint, not only the averments
relating to his right to seek declaration of title over the properties but also
the averments by which he disputed the defendant's right over the
properties, but also withdrew the documents filed along with the plaint.
The plaint and the documents, as one set of papers becomes non existent.
The suit is struck off from the suit register. It no longer exists on the
record.
20. Since a counter claim had been filed by the defendant, the Code
of Civil Procedure provides that the counter claim will have to be
examined as if it is a plaint.
21. Therefore, the counter claim was then allowed to be numbered
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in O.S.No. 68 of 2008. The trial to test the averments made in O.S.No. 68
of 2008 was conducted by the District Munsif at Kotagiri, who passed a
Judgment in the counter claim in O.S.No. 68 of 2008 granting permanent
injunction.
22. Order 8 Rule 6-A provides the guidelines for filing a counter
claim by a defendant. Rules 6(A) (1)(2)(3) & (4) of CPC reads as
follows:-
“6A. Counter-claim by defendant.—
(1) A defendant in a suit may, in addition
to his right of pleading a set-off under rule 6, set
up, by way of counter-claim against the claim of
the plaintiff, any right or claim in respect of a
cause of action accruing to the defendant against
the plaintiff either before or after the filing of the
suit but before the defendant has delivered his
defence or before the time limited for delivering
his defence has expired, whether such counter-
claim is in the nature of a claim for damages or
not: Provided that such counter-claim shall not
exceed the pecuniary limits of the jurisdiction of
the court.
(2) Such counter-claim shall have the
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same effect as a cross-suit so as to enable the
Court to pronounce a final judgment in the same
suit, both on the original claim and on the
counter-claim.
(3) The plaintiff shall be at liberty to file a
written statement in answer to the counter-claim
of the defendant within such period as may be
fixed by the court.
(4) The counter-claim shall be treated as
a plaint and governed by the rules applicable to
plaints. ”
23. Order 8 Rule 6 D is also instructive in so far as a discussion in
this present Appeal is concerned.
24. Order 8 Rule 6-D is as follows:-
“6D. Effect of discontinuance of suit.— If in any
case in which the defendant sets up a counterclaim, the
suit of the plaintiff is stayed, discontinued or dismissed,
the counter-claim may nevertheless be proceeded with.”
25. A perusal of the aforementioned two provisions, leads us to the
conclusion that a defendant in a suit apart from denying the averment
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made in the plaint by filing a written statement also has a right to file,
what has been termed in the statutory books as a counter claim. When a
counter claim is filed necessarily it has to be valued and the Court fees
will have to be paid on such valuation.
26. It also provides that such a counter claim will have the same
effect as a cross suit. But when the original suit itself is withdrawn then
the counter claim can stand independently as a plaint by itself. It is an
assertion of a particular right by the defendant, who claims a relief against
the original plaintiff and who values that particular relief for adjudication
and pays necessary Court fees in accordance with such valuation.
27. Rule 6 A(2) of Order of stipulates that the Court should
pronounce a Judgement not only on the suit but also on the counter claim.
Order 8 (6)(D) speaks about discontinuation of the suit which has
happened in the instant case and provides that the counter claim should
however be proceeded with. The plaintiff in the instant case had
withdrawn O.S.No. 48 of 2002. If the suit of the plaintiff is, discontinued
the Rule provides that the counter claim must however be proceeded with.
28. The District Munsif therefore adopted the correct procedure in
proceeding further with the counter claim. He framed issues. He invited
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both the parties to graze the witness box. The documents available were
marked. If the original plaintiff wanted to mark documents, he should
have filed necessary application seeking permission to produce documents
and to mark them. He might have filed documents along with the original
plaint but since a concious decision had been taken to withdraw the plaint,
it also implies and as a matter of fact, it directly implies that he had also
taken a concious decision to withdraw the documents and that the
documents filed along with the plaint need not be considered by the Court
and that the documents are withdrawn from the purview of the Court.
There is no obligation on the part of the Court to go searching for
documents which have been withdrawn.
29. Documents when presented before the Court shall be examined
on the basis of their admissibility, on the basis of their relevancy and
examined whether they have been proved in the manner known to law. If
they are primary documents, they can be taken on record. If they are
secondary documents, the reasons why the primary documents had not
been produced must be examined. These are the steps to be taken during
the course of trial. After having withdrawn the plaint and having
withdrawn the documents as a consequence thereof, the plaintiff cannot
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thereafter complain that the Court did not examine the documents filed
along with the plaint.
30. In the instant case, the First Appellate Court has stepped into
the shoes of the plaintiff and had put up a specious argument in the course
of the Judgment now under appeal found fault with the District Munsif for
not having marked the documents filed along with O.S.No. 48 of 2002,
though the said suit had been withdrawn.
31. It is held that once the plaint is withdrawn the document are
withdrawn from the scrutiny of the Court. The plaintiff has expressed that
intention by withdrawing the plaint. It does not lie in the mouth of the
Court t go searching for thousand documents and mark them as exhibits
and base Judgment on the basis of those documents.
32. When presented with an appeal, the First Appellate Court
having observed that the plaint in O.S.No. 48 of 2002 had been filed along
with a set of documents but had been withdrawn had still proceeded to
observe that since those documents were already on record, the District
Munsif should have marked those documents as exhibits and since those
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documents were not marked as exhibits found fault with the procedure
adopted by the District Munsif and directed that the District Munsif
should mark those documents and for that purpose had remanded the suit
for re-hearing. That order of remand is now under challenge in the present
Civil Miscellaneous Appeal.
33. Order 43 Rule 1(u) provides that an order of remand either
under Order 41 Rule 23 or under Order 41 Rule 23-A is appealable in
nature. Taking advantage of that particular provision, the appellant is
before us.
34. Heard arguments advanced.
35. The contention of the learned counsel for the appellant herein is
that the respondent having taken a conscious decision to withdraw
O.S.No. 48 of 2002, could not have been presented with an opportunity by
the first appellant Court to mark the documents filed along with O.S.No.
48 of 2002. To mark the documents, proper permission should have been
sought and granted by the Court. But the respondent had not sought such
permission from the Trial Court. When such permission had not been
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sought from the trial Court, the First Appellate Court should not have
embarked on a roving exercise to direct the District Munsif to mark those
documents which according to the First Appellate Court was already on
record.
36. I hold that the said observation by the First Appellant Court.
The documents were not on record. The plaint in O.S.No. 48 of 2002 had
been withdrawn. The plaintiff had taken a conscious decision to withdraw
the plaint and since the plaint and the documents form one set called
pleadings, the documents are also withdrawn. If the First Appellate Court
was of the opinion that opportunity should have been granted to mark
those documents, then, the First Appellate Court should have directed that
necessary application should have been filed under Order 41 Rule 27 to
produce as evidence those documents and then proceed to decide the
matter on merits, taking upon itself, to issue directions to mark documents.
Issue directions to the District Munsif to mark documents without proper
application is extremely unwarranted and calls for interference by this
Court.
37. The learned counsel for the respondent however pointed out
that the directions have been confined in a narrow corridor wherein the
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First Appellate Judge had only stated that the documents already filed
along with O.S.No. 48 of 2002 should alone be marked and evidence
should be confined only to those documents and cross examination should
also been confined to those documents and therefore by limiting the scope
of recording of evidence, no prejudice can be caused to the appellant
herein.
38. I hold that the First Appellate Court should have confined itself
to the materials available on record and should have proceeded to delivery
Judgment on those materials.
39. Section 3 of the Evidence Act speaks of the terms 'proof'
'disprove' and 'not proved'. Proof of any fact is on the basis of the
materials available on the records of the Court. The Court cannot go
beyond that and enter into a fishing exercise and direct examination of
records which are not available on record. Such a direction has to be
interfered with.
40. The learned counsel for the respondent herein relied on (2010)
13 SCC 487 [ Malayalam Plantations Limited., Vs. State of Kerala and
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Another]. The Hon'ble Supreme Court had considered an application filed
under Order 41 Rule 27 CPC, for adjudication of additional evidence
before the Appellate Court. The Hon'ble Supreme Court had stated that
such an application should be considered on merits and should be allowed
in the interest of justice. It had also been stated that where the production
of additional evidence is sought, the duty of the High Court was to deal
with the same on merits. It was stated that at the same time of hearing the
appeal on merits, it has to be determined whether the documents sought to
be produced are required for adjudication of any relief. It was held as
follows:
“14. We are not inclined to go into the
validity or acceptability of those
documents/materials filed by both sides before
the High Court. Order 41 CPC speaks about
procedure in respect of disposal of appeals from
the original decree. Among various rules, we are
concerned with Rule 27 which reads as under:
“27. Production of additional evidence in
appellate court.—(1) The parties to an appeal
shall not be entitled to produce additional
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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 judgment, or
for any other substantial cause, the appellate
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.”
15. In view of the above provision, in our
opinion, when an application for reception of
additional evidence under Order 41 Rule 27 CPC
was filed by the parties, it was the duty of the
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above principle has been reiterated by this Court
in Jatinder Singh v. Mehar Singh [(2009) 17
SCC 465 : AIR 2009 SC 354] and Shyam Gopal
Bindal v. Land Acquisition Officer [(2010) 2
SCC 316] .
16. If any petition is filed under Order 41
Rule 27 in an appeal, it is incumbent on the part
of the appellate court to consider at the time of
hearing the appeal on merits so as to find out
whether the documents or evidence sought to be
adduced have any relevance/bearing on the issues
involved. It is trite to observe that under Order 41
Rule 27, additional evidence could be adduced in
one of the three situations, namely, (a) whether
the trial court has illegally refused the evidence
although it ought to have been permitted; (b)
whether the evidence sought to be adduced by the
party was not available to it despite the exercise
of due diligence; (c) whether additional evidence
was necessary in order to enable the appellate
court to pronounce the judgment or any other
substantial cause of similar nature.
17. It is equally well settled that additional
evidence cannot be permitted to be adduced so as
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points in the case. Adducing additional evidence
is in the interest of justice. Evidence relating to
subsequent happenings or events which are
relevant for disposal of the appeal, however, it is
not open to any party, at the stage of appeal, to
make fresh allegations and call upon the other
side to admit or deny the same. Any such attempt
is contrary to the requirements of Order 41 Rule
27 CPC. Additional evidence cannot be permitted
at the appellate stage in order to enable other
party to remove certain lacunae present in that
case.
18. In the light of the separate application
filed under Order 41 Rule 27 CPC for reception
of additional evidence by both sides, it is for the
High Court to consider and take a decision one
way or the other as to the applicability of the
same and decide the appeal with reference to the
said conclusion. In this view of the matter, we
refrain from going into the merits of the materials
placed by both sides and it is for the High Court
to consider and take a decision one way or the
other as per the mandate of the said provision. ”
41. The facts in the instant case are distinguishable and different.
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In the case before the Hon'ble Supreme Court, an application under Order
41 Rule 27 CPC was actually presented seeking permission to file
additional documents before the First Appellate Court herein. In the
instant case, no such application was ever filed. There were no documents
on record. The First Appellate Court had erred in directing the Munsif
Court to mark the documents which had already been withdrawn by the
plaintiff.
42. The issue of Order 41 Rule 27 CPC should not have come into
consideration by the First Appellate Court. Even before this Court an
application under Order 41 Rule 27 has not been filed. The Judgment
referred which provides the basis or the circumstances under which an
application under Order 41 Rule 27 CPC is to be allowed, is not
applicable at all to the facts of this case since such an application had not
been filed by the respondent herein either before this Court or before the
First Appellate Court.
43. The learned counsel for the appellant relied on 2007 (3) CTC
383 [ Arockiaprakash Vs. Rangasamy], paragraph Nos. 9 and 10:-
“9. The catena of judgments reiterate the
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following principles of law that the order of
remand cannot be passed by the Appellate Court
as a matter of course. Remand is permissible only
when the Appellate Court in the interest of justice
feels that the remand is just and appropriate and
that the Appellate Court should arrive at a
specific finding on the materials available on
record that the judgment of the Trial Court is
erroneous and liable to be set aside, which is a
conditional precedent. The Appellate Court
should not remand the case on the ground that the
evidence is not properly assessed. Order of
remand should not be made when the defect in the
proceeding has been due to negligence or default
of the party, who will benefit by the remand. The
order of remand should not be made to fill up a
lacuna by allowing the party to adduce evidence.
If it is possible for the Appellate Court to evaluate
the oral and documentary evidence, then it is not
open to the Appellate Court to come to the aid of
the parties to fill up the lacuna in the evidence. If
material particulars are available, the Appellate
Court itself should decide the matter one way or
the other. Remanding the matter for fresh
adjudication gives the litigation a fresh lease of
life in the protraction of proceedings.
10. In the instant case, oral and
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parties. The Appellate Court itself can evaluate
the evidence and dispose of the case on merits.
Allowing the plaintiff to let in fresh evidence to
prove his means would amount to, permitting him
to fill up the lacuna in the evidence. The further
reasoning of the Appellate Court that a specific
finding is required with regard to Ex. P1-
Promissory Note is also uncalled for and that the
Appellate court itself should go into the facts and
give a finding.
Order 41 Rule 23 to 29 C.P.C. mandates a
duty on the Appellate Court to find that the
judgment of the Trial Court is erroneous. The
Lower Appellate Court has not specifically found
that the judgment and decree of the Lower Court
is erroneous for no valid reasons. In such
circumstances, the Lower Appellate Court has not
followed the above said legal principles while
deciding the appeal and has unnecessarily
remanded the suit for fresh disposal to let in
additional evidence, which is not called for.”
44. The learned counsel for the appellant therein relied on 2017 (1)
CTC 307 [Elumalai Vs. Kanthamani Ammal] wherein the learned Single
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Judge had observed as follows:-
“A remand should not be made to
reconstruct a case, but only to prevent failure of
justice. A litigant's recalcitrance and default
cannot be counted as a ground per se to remand.”
45. The learned counsel for the appellant also relied on 2013 (3)
MWN (Civil) 47 [Jayamoorthy and Others Vs. Palani and Others],
wherein paragraph Nos. 12 and 14 are as follows:-
“12. In this case, as rightly contended by the
learned counsel for the appellants in the second
appeal, there is no discussion as to the reasons for the
failure to produce the documents before the trial court
itself and there is also absence of a clear finding that
the production of the said document was absolutely
necessary in the interest of justice for rendering a
proper and complete justice. Which one of the above
said clauses of Rule 27 was relied on by the learned
lower appellate judge for allowing the said application
and permitting the appellant therein (plaintiff/first
respondent in the second appeal) to adduce additional
evidence, has not been indicated by the lower appellate
judge. The learned lower appellate judge has also not
discussed the averments made in the affidavit filed in
support of the application and the averments made in
the counter affidavit of the opposite party. The order of
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the lower appellate judge incorporated in the said
judgment allowing the said application is a crippled
one devoid of necessary discussions.
14. There shall be only one circumstance under
which the appellate court can mark the documents and
proceed with the pronouncement of judgment i.e. in
case the parties do not raise objection and they do give
their consent for marking the documents produced as
additional evidence. In such an event there shall be no
necessity to postpone the further hearing of the appeal
and the appellate court can record the same in the
order passed in the application under Order 41 Rule 27
and mark those documents by consent as additional
evidence, hear further arguments in the appeal in the
light of such additional evidence and then proceed with
the pronouncement of the judgment in the appeal. ”
46. The principles aforementioned are quite clear. Unless an
application is filed under Order 41 Rule 27 CPC, the Appellate Court has
to proceed with the said appeal on the basis of the materials available on
record. Only if an application under Order 41 Rule 27 CPC is filed, can
the Appellate Court examine whether further documents are required to
adjudicate the issues before it and thereafter proceed to determine the
scope of the appeal and if it determined that the documents are required
for a just determination of the suit, permit marking of such documents.
Otherwise the First Appellate Court should decide the appeal only on the
https://www.mhc.tn.gov.in/judis
basis of the records.
47. In view of the aforesaid reasoning, the order of remand is set
aside. This Civil Miscellaneous Appeal is allowed. The First Appellate
Court is directed to dispose of A.S.No. 33 of 2017 on the basis of the
materials available on the record and proceed to deliver a Judgment. The
Judgment dated 06.08.2018 made in A.S.No. 33 of 2017 remanding,
O.S.No. 68 of 2008 for fresh consideration by marking documents is set
aside and a direction is given to the Sub Court, Conoor, to take A.S.No. 33
of 2017 on file and proceed to hear the rival contentions on the basis of
the documents and materials available on record. The direction to remand
the suit for marking documents is specifically set aside. No costs.
Consequently, connected Miscellaneous Petition is closed.
24.03.2022
Index:Yes / No
Speaking / Non-Speaking order
vsg
To
https://www.mhc.tn.gov.in/judis
1. Sub Court, Conoor.
2.The Section Officer,
VR Section,
Madras High Court, Chennai.
C.V.KARTHIKEYAN, J.
https://www.mhc.tn.gov.in/judis vsg
CMA No. 2189 of 2018
And
C.M.P.No. 17054 of 2018
24.03.2022
https://www.mhc.tn.gov.in/judis
