Perumal (Died) vs Ayyadurai (Died)
2023 Latest Caselaw 3805 Mad

                                                                        S.A.No.1869 of 2001


                           BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                             Dated : 05.04.2023

                                                   CORAM

                                  THE HON'BLE MR.JUSTICE P.VELMURUGAN

                                            S.A.No.1869 of 2001

                     1.Perumal (died)               ... Appellant/Respondent/Defendant
                     2.Thangasamy
                     3.Ramaiah
                     4.Natarajan
                     5.Vettun Perumal
                     6.Paramasivan

                     (Appellants 2 to 6 are brought on record as
                       Legal Heirs of the deceased sole appellant vide
                      order dated 21.07.2010 in M.P(MD)Nos.1 to 3 of 2009.)

                                                                              ... Appellants

                                            -vs-

                     1.Ayyadurai (died)                ..Respondent/Appellant/Plaintiff
                     2.Indira
                     3.Kovil Ponraj

                     (R2 & R3 are brought on record as Legal Heirs of
                       the deceased sole respondent vide
                      court order dated 24.01.2020 made in
                      CMP(MD)Nos.11202 & 11203 of 2018)

                                                                              ..Respondents




https://www.mhc.tn.gov.in/judis
                     1/6
                                                                                 S.A.No.1869 of 2001


                     PRAYER: Second Appeal filed under Section 100 Code of Civil
                     Procedure, against the Judgment and Decree made in A.S.No.5 of 2001
                     on the file of the Principal Sub-Judge, Tirunelveli dated 10.09.2001
                     reversing the Judgment and Decree in O.S.No.375 of 1998 on the file of
                     the Principal District Munsif, Tirunelveli dated 08.01.2001.


                                    For Appellants         ... Mr.S.Meenakshisundaram
                                                              Senior Counsel for
                                                                 Mr.N.GA.Natraj

                                    For Respondents        ... Mr.Ananth C.Rajesh



                                                          JUDGMENT

This Second Appeal is filed to set aside the Judgment and Decree

made in A.S.No.5 of 2001, on the file of the Principal Sub-Judge,

Tirunelveli, dated 10.09.2001 reversing the Judgment and Decree in

O.S.No.375 of 1998, on the file of the Principal District Munsif,

Tirunelveli, dated 08.01.2001.

2.The fact remains that the documents were not marked before the

trial Court, which were marked only before the appellate Court.

Admittedly, the documents were not marked by consent of both the

parties. If that being the case, the lower appellate Court, while

exercising the power, should have recorded the evidence by giving

https://www.mhc.tn.gov.in/judis

S.A.No.1869 of 2001

opportunity to both the parties and marked documents and or otherwise

could have delegated the power to the trial Court to receive the

documents regarding the evidence and thereafter, the trial Court should

have sent it back the evidence and marked documents to the lower

appellate Court. The lower appellate Court, after considering the

evidence and documents, would have given a finding. The appellate

Court failed to do that. It is apparent that the appellate Court has not

followed Order 41 Rule 27 and 28 of the Code of Civil Procedure.

Whenever a statute requires to be done in a particular manner and when

such act has to be done in that manner only and in no other manner.

Therefore, the opportunity for taking evidence definitely must be given

to both the parties and the documents also should be marked in the

manner known to law. In case of marking documents, opportunity must

be given to both the parties to adduce evidence on the same and for

cross-examination, opportunity must be given to the opposite party. In

this case, this has not been done. Therefore, the Judgments reported in

(2022)1 MLJ 282 (M.A.C. Ayesha Ummal vs. M.L. Mohamed Hasan)

and 2023(1) CTC 30 (S.Shanmuga Sundaram vs. S.Mohan), which are

relied on by the learned counsel for the appellants, are squarely

applicable to the present case also.

https://www.mhc.tn.gov.in/judis

S.A.No.1869 of 2001

3.Accordingly, the Second Appeal is allowed by setting aside the

Judgment and Decree in A.S.No.5 of 2001, dated 10.09.2001, on the file

of the Principal Sub-Judge, Tirunelveli and the matter is remanded back

to the lower appellate Court to decide the matter afresh. The lower

appellate Court is directed to take up the matter and decide the matter on

merits by giving opportunity to both the parties to adduce additional

evidence and marking documents through the witnesses and giving

opportunity to the parties for cross-examination.

4.Registry is directed to send back the records to the lower

appellate court within ten days from the date of receipt of a copy of this

order. Both the parties are directed to appear before the first appellate

Court on 6th of June 2023. The lower appellate Court is directed to

decide the matter afresh as stated supra, in accordance with law, on or

before 31.08.2023. No costs.

05.04.2023 NCC : Yes/No Index : Yes/No Internet: Yes/No skn Note : Issue Order Copy on 11.04.2023.

https://www.mhc.tn.gov.in/judis

S.A.No.1869 of 2001

To:

1.The Principal Sub Judge, Tirunelveli.

2.The Principal District Munsif, Tirunelveli.

3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

S.A.No.1869 of 2001

P.VELMURUGAN, J.

skn

S.A.No.1869 of 2001

05.04.2023

https://www.mhc.tn.gov.in/judis