Madras High Court
A.Jayapandian vs A.John Birtto on 5 January, 2023
C.R.P.No.4379 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2023
CORAM
THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM
C.R.P.No.4379 of 2022
and
C.M.P.No.23209 of 2022
1.A.Jayapandian
2.A.Veerapandian
3.J.Esther
4.V.Christy ... Petitioners
Vs.
1.A.John Birtto
2.D.Birla David ... Respondents
PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of
India against the fair and decretal order of XV Additional City Civil Court,
Chennai, dated 28.09.2022, passed in I.A.No.2 of 2021 in A.S.No.283 of 2018.
For Petitioners : Mr.K.R.B.Dhaaranee
For Respondent : Mr.A.Kumar
*****
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C.R.P.No.4379 of 2022
ORDER
This Civil Revision Petition has been filed challenging the order of XV
Additional City Civil Court, Chennai, dated 28.09.2022, passed in I.A.No.2 of
2021 in A.S.No.283 of 2018.
2. The revision petitioners are the appellants in the appeal suit in
A.S.No.283 of 2018 and they are the plaintiffs in the original suit in
O.S.No.2686 of 2009 on the file of V Assistant Judge, City Civil Court,
Chennai, which was filed seeking declaration to declare the sale deed as null
and void and for injunction. The suit was dismissed and the revision petitioners
preferred A.S.No.283 of 2018. It is not in dispute that the appeal suit in
A.S.No.283 of 2018 was posted for passing judgment on 12.01.2023 by the XV
Additional City Civil Court, Chennai. During the pendency of the appeal suit,
the revision petitioners/appellants filed an interlocutory application in I.A.No.2
of 2021 under Order XLI Rule 27 r/w Section 151 of the Code of Civil
Procedure to receive additional documents viz., (a) Loan sanction letter from
Indian Overseas Bank and (b) letter sent by the Manager of Indian Overseas
Bank dated 12.09.2014 and permit the petitioners to mark those documents in
the appeal suit. The Appellate Court adjudicated the issues and considered the
conditions to be complied with under Order 41 Rule 27 CPC for the purpose of
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C.R.P.No.4379 of 2022
accepting additional documents during the pendency of the appeal suit. The
Appellate Court found that the two letters/documents sought to be marked are
dated 10.08.2008 and 12.09.2014. The suit was instituted by the revision
petitioners/appellants in O.S.No.2686 of 2009. The said suit was dismissed on
28.04.2018. Even during the pendency of the original suit, the additional
documents sought to be marked through the interlocutory application in the first
appeal were within the knowledge of the revision petitioners. The revision
petitioners ought to have initiated steps to mark those documents in the original
suit or at least at the time of filing of appeal suit in A.S.No.283 of 2018.
Instead, the revision petitioners have filed the interlocutory application in the
year 2021 when the first appeal was finally posted for arguments and judgment.
3. The Appellate Court considered the interlocutory application with
reference to the three conditions, which must be complied with under Order 41
Rule 27 CPC, which are as follows:
(i) The document ought to be marked must be relevant to the appeal.
(ii)The document intended to be marked must be unknown or it must be
out of the knowledge of the parties.
(iii)The document intended to be marked cannot be traced or found out
even after exercise of due diligence.”
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C.R.P.No.4379 of 2022
4. The Appellate Court further found that the said documents are not at
all relevant to decide the validity of the document dated 04.08.2008. The
revision petitioners themselves have stated that the loan was obtained by deposit
of title deeds on 15.02.2003. The suit was instituted in the year 2009 itself.
Therefore, the said documents were available and within the knowledge of the
revision petitioners at the time when the suit was instituted. With reference to
the document dated 12.09.2014, it was also within the knowledge of the
revision petitioners. Thus, they would have marked those documents at the time
of trial in the original suit or at least at the time of filing of appeal before the
Appellate Court, but they failed to do so. Thus, the Appellate Court arrived at a
conclusion that the revision petitioners have not complied with the mandate
provided in Order 41 Rule 27 CPC and consequently, the interlocutory
application was dismissed.
5. As rightly observed by the Appellate Court, the revision petitioners
have not given any satisfactory reason to show their due diligence for not
producing the letters of the years 2008 and 2014. A person, who left over the
issue, cannot be allowed to wake up after several years, which would cause
prejudice to the interest of other parties. The parties, who are approaching the
Court, must file the documents within their knowledge at the time of institution
of the original suit or at least during the pendency of the original proceedings.
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C.R.P.No.4379 of 2022
6. In the present case, the revision petitioners have filed an appeal suit
and even at the time of filing of the appeal suit, they have not filed those
documents, which were within their knowledge even at the time of institution of
suit. This being the factum established, this Court do not find any acceptable
reason to interfere with the order impugned.
In the result, the order dated 28.09.2022 passed in I.A.No.2 of 2021 in
A.S.No.283 of 2018 by the XV Additional City Civil Court, Chennai, is
confirmed and the Civil Revision Petition is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
05.01.2023
Index : Yes
Speaking order
Neutral Citation : Yes
gm
To
The XV Additional City Civil Court,
Chennai.
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C.R.P.No.4379 of 2022
S.M.SUBRAMANIAM., J
gm
C.R.P.No.4379 of 2022
05.01.2023
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