S. Raju vs S.Balasundaram
2023 Latest Caselaw 952 Mad

                                                                             C.R.P.No.1471 of 2016

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED : 24.01.2023

                                                    CORAM

                                  THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

                                              C.R.P.No.1471 of 2016
                                                       and
                                              C.M.P.No.8078 of 2016

                     S. Raju                                ....      Petitioner

                                                       Vs

                     1. S.Balasundaram

                     2. S.Sambamoorthy (Died)

                     3. S.Palanisamy
                     4. Konammal

                     5. S.Vijayalakshmi
                     6. S.Ramesh Kumar
                     7. S.Saravana Kumar
                     8. Geetha Rani
                     (Respondents 5 to 8 brought on record
                     as LRs of the deceased R2 vide Court
                     order dated 05.12.2022 made in
                     CMP No.1350 & 1351 of 2017 in
                     CRP No.1471 of 2016)                  ....       Respondents

                     Prayer :- Civil Revision Petition is filed under Article 227 of
                     Constitution of India to set aside the fair and decreetal order dated
                     09.12.2015 in I.A.No.24 of 2015 in A.S.No.5 of 2012 on the file of the I
                     Additional Subordinate Judge, Coimbatore.
https://www.mhc.tn.gov.in/judis
                     1/10
                                                                                  C.R.P.No.1471 of 2016

                                            For Petitioners     :   Mr.R.Subramanian
                                            For R1              :   Dr.C.Ravichandran
                                            For R2              :   Died (Steps taken)
                                            For R3 to R8        :   No appearance

                                                       ORDER

This Civil Revision Petition has been filed to set aside the fair

and decreetal order dated 09.12.2015 made in I.A.No.24 of 2015 in

A.S.No.5 of 2012 on the file of the I Additional Subordinate Judge,

Coimbatore, thereby allowing the petition filed under Order 41 Rule 27

read with Section 151 of CPC to examine the attesting witness

S.K.Shanmugasundaram as additional evidence in the appeal suit.

2. The revision petitioner is the plaintiff and the respondents

are the defendants in the suit for partition in respect of the suit schedule

property. The case of the petitioner is that the petitioner and other

respondents are the legal heirs of their father S.V.Shanmugam. The 1st

item of the suit schedule property belonged to their mother viz.,

Chinnamuthu by virtue of the sale deed dated 15.03.1950. The said

Chinnamuthu predeceased her husband by name S.V.Shanmugam. After

demise of the said Chinnamuthu, the 1st item of the suit schedule property

was devolved upon the legal heirs of deceased Chinnamuthu viz.,

S.V.Shanmugam, the petitioner and the respondents herein. They were in https://www.mhc.tn.gov.in/judis

C.R.P.No.1471 of 2016

joint possession and enjoyment of the 1st item of the suit schedule

property. Insofar as the item Nos.2 and 3 of the suit schedule properties

are concerned, those properties belonged to their father by virtue of the

sale deeds dated 18.03.1970 and 27.06.1977. Therefore, they are entitled

to have equal share.

3. The first respondent herein, being the third defendant,

resisted the suit by filing separate written statement stating that by a Will

dated 28.06.1987, item Nos.2 and 3 of the suit schedule properties were

already bequeathed in his favour and the 1st item of the property, has to

be divided into six shares and he is entitled for one share. However, he

failed to prove the said Will dated 28.06.1987 before the Trial Court and

as such, the Trial Court had not believed the stand taken by the first

respondent herein and decreed the suit as prayed for. Aggrieved by the

same, the first respondent herein filed an appeal suit. Pending appeal

suit, the first respondent filed an application under Order 41 Rule 27

read with 151 of CPC to examine one of the attesting witness

S.K.Shanmugasundaram as additional evidence on his side. It was

allowed. Aggrieved by the same, the present Civil Revision Petition.

4. The learned counsel appearing for the revision petitioner https://www.mhc.tn.gov.in/judis

C.R.P.No.1471 of 2016

would submit that though the Will allegedly executed in favour of the

first respondent on 28.06.1987, even on receipt of the suit notice, the first

respondent failed to disclose the same. Only after filing the written

statement, he produced the Will and failed to prove the same. He did not

take any steps to examine any attesting witness to the said Will before the

Trial Court. Only on that ground, the suit filed by the petitioner was

decreed and only to fill up the lacuna, the first respondent had now filed

a petition to adduce additional evidence. She further submitted that the

first respondent failed to exercise due diligence before the Trial Court to

examine any attesting witness.

5. In support of his contention, he relied upon the Judgement

reported in (2001) 7 SCC 503 in the case of N.Kamalam (Dead) and

another Vs. Ayyasamy and another, in which, the Hon'ble Supreme

Court of India held that the provision under Order 41 Rule 27 have not

been engrafted in the Code so as to patch up the weak points in the case

and to fill up the omission in the Court of appeal. It does not authorise

any lacuna or gaps in evidence to be filled up. The authority and

jurisdiction as conferred on the appellate Court to let in fresh evidence is

restricted to the purpose of pronouncement of judgment in a particular https://www.mhc.tn.gov.in/judis

C.R.P.No.1471 of 2016

way. She also submitted that the first respondent failed to prove the Will

before the Trial Court in the manner known to law. Therefore, the

present petition has been filed only to fill up the lacuna.

6. The learned counsel appearing for the first respondent

submitted that in order to arrive at a proper decision, it would be

necessary to examine additional evidence in order to prove the Will,

which was marked as Ex.B47. Further, the first respondent had taken

appropriate steps to examine the attestors of the Will. However, on

issuance of notice to the attestors, one of the attestors received the same

and failed to appear before the Court. Notice to the other attestors was

returned for the reason that their correct address would not be found.

Pending appeal suit, the first respondent found one of the attesstors in the

case viz., S.K.Shanmugasundaram and filed the present application.

Therefore, the Court below rightly allowed the petition.

7. In support of his contention, he also relied upon the

Judgment reported in CDJ 2018 SC 1008 in the case of Uttaradi Mutt

Vs. Raghavendra Swamy Mutt, in which, the Hon'ble Supreme Court of

India held that the additional evidence sought to be adduced removes the https://www.mhc.tn.gov.in/judis

C.R.P.No.1471 of 2016

cloud of doubt over the case and the evidence has a direct and important

bearing on the main issue in the suit and interest of justice clearly renders

it imperative that it may be allowed to be permitted on record, such

application may be allowed.

8. Heard, Mr.R.Subramanian, learned counsel appearing for

the petitioner and Dr.C.Ravichandran, learned counsel appearing for the

first respondent and perused the materials available on record.

9. The first respondent mainly resisted the suit on the

strength of the Will, which was marked as Ex.47, dated 28.06.1987.

Further, he failed to examine any attestor of the Will before the Trial

Court. The findings of the Trial Court is that the first respondent failed

to prove the Will dated 28.06.1987. Further, he failed to prove that the

said Will was acted upon in the year 2000. As per the provision under

Sections 68 and 69 of the Indian Evidence Act, the first respondent did

not take any steps to examine any witness in order to prove the Will.

A perusal of Exs.B48 and B49 shows that the letter to the attestors were

returned. Further, he did not take any steps to summon those attestors

before the Court of law. Therefore, the Trial Court decreed the suit. https://www.mhc.tn.gov.in/judis

C.R.P.No.1471 of 2016

Aggrieved by the Judgment and Decree passed by the Trial Court, the

first respondent preferred an appeal suit.

10. Pending appeal suit, the first respondent filed a petition

under Order 41 Rule 27 read with 151 of CPC on the ground that the Will

dated 28.06.1987 executed by his father creating limited estate in his

favour and his wife and vested reminder in his favour and his daughter

with regard to the suit schedule property. The attesting witness of the

above Will could not be examined during trial as their whereabouts were

not known. Further, now he found the address of the attesting witness

viz, S.K.Shanmugasundaram. Therefore, the witness is vital to

substantiate his case and in order to substantiate the Will dated

28.06.1987, he has to be examined before the Trial Court. In order to

clear the cloud of doubt over the case and the evidence has a direct and

important bearing on the main issue in the suit and interest of justice

clearly renders it imperative that it may be allowed to be permitted on

record to render judgment. The Court can consider such an application

with circumspection, provided it is covered under either of the

prerequisite conditions incorporated in the statutory provisions itself.

The discretion is to be exercised by the Court judicially taking into https://www.mhc.tn.gov.in/judis

C.R.P.No.1471 of 2016

consideration the relevance of the document in respect of the issues

involved in the case and the circumstances under which such an evidence

could not be led in the Court below and as such whether the applicant

had prosecuted his case before the Court below deligently and as to

whether such evidence is required to pronounce the judgment by the

Appellate Court.

11. In the case on hand, the first respondent had returned

letter of the attestors, which was marked as Ex.B48. The letters were

returned and the returned covers were marked as Ex.B49. Therefore, the

first respondent had taken steps before the Trial Court in order to

examine the attestors of the petitioner. Even then he could not find out

the correct address of the attestors. Pending appeal suit, one of the

attestors was found and he had taken steps to examine him on his side.

Therefore, the First Appellate Court rightly allowed the application.

12. In view of the above, this Court finds no infirmity or

illegality in the order dated 09.12.2015 in I.A.No.24 of 2015 in A.S.No.5

of 2012 on the file of the I Additional Subordinate Judge, Coimbatore.

Accordingly, this Civil Revision Petitions stands dismissed. https://www.mhc.tn.gov.in/judis

C.R.P.No.1471 of 2016

Consequently, connected miscellaneous petition is closed. No costs.

24.01.2023

Index:Yes/No Internet:Yes/No Lpp

To

The I Additional Subordinate Judge, Coimbatore.

G.K.ILANTHIRAIYAN, J.

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

C.R.P.No.1471 of 2016

Lpp

C.R.P.No.1471 of 2016 and C.M.P.No.8078 of 2016

24.01.2023

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