Madras High Court
Cicily vs Mariadhas ...1St on 21 June, 2023
S.A.(MD).No.75 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.06.2023
CORAM
THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE
S.A.(MD).No.75 of 2017
and
C.M.P.(MD).No.1425 of 2017
Cicily ... Appellant/1st respondent/1st respondent/
1st Plaintiff and LR of Plaintiff No.2/
Decree Holder
Ronickam (Died) ...2nd Plaintiff
Vs.
1.Mariadhas ...1st Respondent/Appellant/Petitioner/
Claimant/Obstructer/3rd Party
2.Lazar ...2nd Respondent/2nd Respondent/3rd Respondent
/Judgment Debtor/1st Defendant
3.Balakrishkrishnan ...3rd Respondent/3rd Respondent/4th Respondent/
/Judgment Debtor/2nd Defendant
4.Masillamony ....4th Respondent/4th Respondent/6th Respondent
/Judgment Debtor/4th Defendant
Yesuvadian (Died) ...5th Defendant
Therasammal (Died) ...LR of 5th Defendant
5.Margret Marry
1/20
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
6.Elsi
7.George
8.Victorial
9.Alphonsal
10.Pushpam ...5 to 10 Respondents/6 to 11 Respondents/
9 to 14 Respondents/LR of
deceased 5th Defendant
Chellammal (Died) ...LR of 3rd Defendant
Prayer: Second Appeal is filed under Section 100 of CPC to set aside the
judgment and decree dated 25.07.2016 passed in A.S.No.144 of 2015 on the file
of the Sub Court, Kuzhithurai, Kanyakumari District, reversing the judgment
(Fair order) and Decree dated 02.11.2015 passed in E.A.No.217 of 2008 in
E.P.No.46 of 2008 in O.S.No.23 of 1992 on the file of the Principal District
Munsif Court, Kuzhithurai, Kanyakumari District by allowing this Second
Appeal.
For Appellant : Mr.V.Meenakshisundaram
For Respondents : Mr.S.Meenakshi Sundaram
Senior Counsel
for M/s.N.GA.Nataraj for R-1
R-2 to R-10 - Given up
2/20
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
JUDGMENT
This Second Appeal has been filed challenging the judgment and decree
of the Lower Appellate Court, namely, the Sub Court, Kuzhithurai dated
25.07.2016 in I.A.No.96 of 2016 and A.S.No.144 of 2015.
2. The appellant is the first respondent in A.S.No.144 of 2015 on the file
of the Sub Court, Kuzhithurai. The appellant is having the benefit of a
judgment and decree dated 07.11.2003 passed in I.A.No.164 of 1997 in
O.S.No.23 of 1992 on the file of the Sub Court, Kuzhithurai. It was a final
decree passed in favour of the appellant in a partition suit, namely, O.S.No.23
of 1992. The appellant filed an execution petition before the Principal District
Munsif Court, Kuzhithurai in E.P.No.46 of 2008 to execute the aforesaid final
decree passed in the partition suit.
3. However, the first respondent claims that he is in lawful possession of
the property and that the appellant, who had obtained a fraudulent decree for
partition behind his back, is not entitled for recovery of possession and on the
said ground, he had filed an obstruction petition under Order 21 Rule 97 CPC
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
before the Executing Court in E.P.No.46 of 2008. The obstruction petition filed
by the first respondent was numbered as E.A.No.217 of 2008. A counter was
also filed by the appellant, who is the decree holder, in the said execution
application. The Executing Court, namely, the Principal District Munsif Court,
Kuzhithurai by its order dated 02.11.2015 in E.A.No.217 of 2008 in E.P.No.46
of 2008 in O.S.No.23 of 1992 dismissed the obstruction petition filed by the
first respondent.
4. Aggrieved by the same, the first respondent filed a first appeal before
the Sub Court, Kuzhithurai in A.S.No.144 of 2015. In the said first appeal, the
first respondent also filed an application in I.A.No.96 of 2016 under Order 41
Rule 27 CPC for the reception of additional documents, namely, a) Advocate
Commissioner's report, b) judgment and decree passed in O.S.No.6 of 1983 on
the file of the Additional District Munsif Court, Kuzhithurai. A counter
affidavit has also been filed by the appellant denying the contentions of the first
respondent and objecting to the marking of the documents referred to in the
application filed by the first respondent under Order 41 Rule 27 CPC. Both the
first appeal, namely, A.S.No.144 of 2015 and the interlocutory application filed
under Order 41 Rule 27 CPC, namely, I.A.No.96 of 2016 were heard together
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
by the Sub Court, Kuzhithurai and by the impugned judgment and decree dated
25.07.2016, the Lower Appellate Court, namely, the Sub Court, Kuzhithurai
allowed the first appeal filed by the first respondent in A.S.No.144 of 2015 and
also allowed I.A.No.96 of 2016 filed by the first respondent under Order 41
Rule 27 CPC and the documents referred to in I.A.No.96 of 2016 were allowed
to be received and they were marked as exhibits P30 to P33. Aggrieved by the
judgment and decree dated 25.07.2016 passed by the Sub Court, Kuzhithurai in
I.A.No.96 of 2016 and A.S.No.144 of 2015, the first respondent in the said first
appeal has filed this Second Appeal.
5. This Court on 14.02.2017 admitted the Second Appeal by formulating
the following substantial questions of law:
"a) When the obstructor/P.W.1 in E.A.No.217 of 2008
specifically admitted that he has no objection regarding the
property purchased by Varuvel and also admitted that he has no
objection regarding the portion allotted to the appellant herein,
whether the first Appellate court is correct in overlooking the vital
admissions of P.W.1/obstructor and thereby allowed the appeal suit
in A.S.No.144 of 2015?
b) When the Judgment in A.S.No.24 of 1992 projected by the
obstructor/first respondent herein is a Judgment in personam and
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
the appellant herein is not a party to the proceedings, whether the
first Appellate Court is right in relying upon the Judgment in
A.S.No.24 of 1992 in allowing the first appeal in A.S.No.144 of
2015?
c) When there is a clear findings that the portion claimed by
the obstructor in Re-survey No.248/4B is the Southern portion and
Varuvel's portion is separate portion in A.S.No.24 of 1992 (Ex.P.7),
whether the first Appellate Court is correct in deciding that the
portion claimed by the Obstructor and the property mentioned in
E.P.No.46 of 2008 is one and the same?
d) Whether the first Appellate Court is correct in receiving
and marking additional documents as Ex.P.30 to Ex.P.33 without
following procedures contemplated under Order 41 Rule 27 and 28
of C.P.C and thus the Judgment of the first Appellate Court relying
upon the additional documents warrants interference under Section
100 of C.P.C?"
6. The learned counsel for the appellant would submit that no opportunity
was granted to the appellant, who is the first respondent in the first appeal
before the Sub Court, Kuzhithurai, for cross-examining the veracity of the
documents relied upon by the first respondent under Order 41 Rule 27 CPC by
the Lower Appellate Court, namely, the Sub Court, Kuzhithurai. He referred to
the impugned judgment and decree of the Lower Appellate Court and would
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
submit that the impugned judgment and decree is contrary to the provisions of
Order 41 Rule 27 and 28 of CPC. Relying upon the said rules, the learned
counsel for the appellant would submit that it is mandatory for the Court as per
the said rules to grant an opportunity for the appellant to cross-examine with
regard to the veracity of the documents relied upon in the Order 41 Rule 27
CPC application and only thereafter the said documents can be marked as
exhibits. However, according to him, erroneously by total non-application of
mind to Order 41 Rule 27 and 28 CPC, the Lower Appellate Court has allowed
the application filed by the first respondent under Order 41 Rule 27 CPC and
has also marked the said documents as exhibits P30 to P33. The learned
counsel for the appellant would therefore submit that the matter has to be
remanded back to the Lower Appellate Court by setting aside the impugned
judgment and decree for fresh consideration on merits and in accordance with
law as per the provisions of Order 41 Rule 27 and 28 CPC.
7. On the contrary, the learned counsel for the first respondent would
submit that only to protract the proceedings, the present Second Appeal has
been filed. He would submit that the documents relied upon by the first
respondent in his application filed under Order 41 Rule 27 CPC are all Court
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
records, namely, the judgment and decree passed in a civil suit and the
Advocate Commissioner's report and therefore, there is no necessity for the
appellant to cross-examine with regard to the veracity of the said documents.
He would also submit that the present case will not entitle the appellant to seek
for remand. In support of his submission, he relied upon a judgment of the
Hon'ble Supreme Court in the case of Shivakumar and others Vs.
Sharanabasappa and others reported in 2020 (4) CTC 321 and in particular, he
referred to paragraph No.25.4 in the said judgment. He would submit that an
order of remand should not be passed in a routine manner because an
unwarranted order of remand merely elongates the life of the litigation without
serving the cause of justice. He would submit that as per the said decision
when the available evidence is sufficient to dispose of the matter, there is no
necessity for this Court to remand the matter to the Lower Appellate Court for
fresh consideration.
8. However, the learned counsel for the appellant would submit that
before marking of documents, the Lower Appellate Court ought to have
followed the mandatory procedure contemplated under Order 41 Rule 27 and
28 CPC. Relying upon the said rules, the learned counsel for the appellant
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
would submit that it is mandatory for the Appellate Court to grant an
opportunity for the respondent to cross-examine with regard to the veracity of
the documents relied upon by the petitioner under Order 41 Rule 27 CPC
before marking of the said documents as exhibits. He would reiterate that the
mandatory procedure contemplated under Order 41 Rule 28 CPC has been
given a go by in the impugned judgment and decree. Hence, he would submit
that the matter will have to be remanded back to the Lower Appellate Court for
fresh consideration on merits. He would also submit that since the documents
relied upon in the application filed under Order 41 Rule 27 CPC are all Court
records, namely, the judgment and decree passed in a civil suit as well as the
Advocate Commissioner's report, the appellant has no objection for receiving
the documents, but however, the said documents can be marked as exhibits after
hearing the objections raised by the appellant and only after the first respondent
leads oral evidence in the form of proof affidavit with regard to the marking of
the said documents as exhibits.
Discussion:
9. In the instant case, it is an admitted fact that the Lower Appellate
Court under the impugned judgment and decree after hearing the parties has
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
allowed the first appeal A.S.No.144 of 2015 filed by the first respondent and
also the application, namely, I.A.No.96 of 2016 filed under Order 41 Rule 27
CPC simultaneously and has also marked the documents referred to in the
application, namely, I.A.No.96 of 2016 as exhibits P30 to P33. It is also an
undisputed fact that the first respondent did not lead any oral evidence for
marking the aforesaid documents. No opportunity was also granted to the
appellant to cross-examine the first respondent with regard to the contents and
veracity of the documents relied upon in the application filed under Order 41
Rule 27 CPC.
10. Order 41 Rule 27 and 28 of CPC reads as follows:
"27. Production of additional evidence in Appellate
Court.- (1) The parties to an appeal shall not be entitled
to produce additional 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
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
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) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record
the reason for its admission.
28. Mode of taking additional evidence.- Wherever
additional evidence is allowed to be produced, the
Appellate Court may either take such evidence, or direct
the Court from whose decree the appeal is preferred, or
any other subordinate Court, to take such evidence and
to send it when taken to the Appellate Court."
As seen from the aforesaid rules, the Appellate Court will have to record
reasons for admitting additional evidence and wherever additional evidence is
allowed to be produced, the Appellate Court may either take such evidence or
direct the Court from whose decree the appeal is preferred, or any other
Subordinate Court, to take such evidence and to send it when taken to the
Appellate Court.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
11. In the case on hand, even though reasons have been given by the
Lower Appellate Court for accepting to receive the additional evidence, which
the first respondent relies upon in his application under Order 41 Rule 27 CPC,
the Lower Appellate Court has completely ignored the procedure contemplated
under Order 41 Rule 28 CPC which makes it clear that wherever additional
evidence is allowed to be produced, the Appellate Court will have to take such
evidence as it deems fit by itself or direct the Court from whose decree the
appeal is preferred or any other Subordinate Court to take such evidence and
thereafter send it back to the Appellate Court. In the case on hand, as seen from
the impugned judgment and decree, the Lower Appellate Court has not only
accepted the documents relied upon by the first respondent in his application
filed under Order 41 Rule 27 CPC, but has also erroneously marked the said
documents as exhibits without granting an opportunity to the appellant to
cross-examine with regard to the veracity of the said documents and without
there being any oral evidence led by the first respondent for marking of those
documents by total non-application of mind to the mandatory procedure
contemplated under Order 41 Rule 27 and 28 CPC. Hence, this Court is of the
considered view that the Lower Appellate Court under the impugned judgment
and decree has erroneously marked the documents relied upon in the Order 41
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
Rule 27 CPC application filed by the first respondent, though Order 41 Rule 28
CPC makes it clear that the first respondent will have to lead oral evidence for
the purpose of marking of the documents and an opportunity must also be
granted to the appellant to cross-examine the first respondent with regard to the
veracity and admissibility of the documents.
12. The learned counsel for the first respondent relied upon a judgment of
the Hon'ble Supreme Court in the case of Shivakumar and others Vs.
Sharanabasappa and others reported in 2020 (4) CTC 321 referred to supra
and in particular, he referred to paragraph 25.4 of the said judgment and he
would submit that the question of remanding the matter back to the Lower
Appellate Court will not arise in the present case as the evidence is very much
available and if the same is remanded, it will only protract the litigation further
without serving the cause of justice. The said judgment relied upon by the
learned counsel for the first respondent was a case of remand order passed in a
first appeal and not in a case involving a Second Appeal under Section 100
CPC. Only this Court while deciding a Second Appeal can entertain the same
only when there is a substantial question of law involved. The First Appellate
Court is a final Court of facts.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
13. As seen from Order 41 Rule 27 and 28 of CPC, it is clear that before
marking documents as exhibits in an application filed under Order 41 Rule 27
CPC, oral evidence will have to be let in by both the parties and the respondent
in the said application will have to be granted an opportunity to cross-examine
with regard to the veracity and the admissibility of the documents relied upon
by the petitioner in his application filed under Order 41 Rule 27 CPC.
14. On the contrary, the learned counsel for the appellant would rely
upon a judgment of the Hon'ble Supreme Court in the case of Akhilesh Singh
@ Akhileshwar Singh Vs. Lal Babu Singh and others reported in 2018-3-L.W.
97 and in particular, he referred to paragraphs 10, 11 and 13 of the said decision
and would submit that the said decision squarely applies to the facts of the
instant case as in the said decision, the Hon'ble Supreme Court has made it
clear that the contesting respondents in the application filed under Order 41
Rule 27 CPC even though they remained unrepresented, they must be granted
an opportunity to lead evidence in rebuttal. The relevant paragraph, namely,
paragraph 13 of the aforesaid decision is extracted hereunder:
"13. Order 41 Rule 2 provides that the appellant shall not,
except by leave of the court, be allowed to urge any ground in the
appeal, which is not set forth in the memorandum of appeal. The
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
proviso to Order 41 Rule 2 engrafts a rule, which obliged the Court
to grant a sufficient opportunity to the contesting party, if any new
ground is allowed to be urged by another party, which may affect
the contesting party. The provision engrafts rule of natural justice
and fair play that contesting party should be given opportunity to
meet any new ground sought to be urged. When the appellate court
admits the additional evidence under Order 41 Rule 27, we fail to
see any reason for not following the same course of granting an
opportunity to the contesting party, which may be affected by
acceptance of additional evidence. In the present case, additional
evidence, which were brought on the record were registered sale
deeds, which were executed by the present appellant and his other
co-sharers and what was relied on before the High Court was that
the appellant admitted in the sale deeds that the partition has taken
place in the family. The main issue in the first appeal before the
High Court was as to whether the finding of the trial court that no
partition by metes and bounds has taken place in the family is
correct or not. The additional evidence which was admitted has
been relied on by the High Court while allowing the appeal. It was
in the interest of justice that the High Court ought to have allowed
opportunity to the plaintiffs, who were respondents to the first
appeal to either lead an evidence in rebuttal or to explain the
alleged admissions as relied on by the defendants. The mere fact
that no counter-affidavit was filed to the IAs was not decisive.
Since IAs having not been admitted, occasion for counter-affidavit
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
did not arise at any earlier point of time. The High Court on the
same day i.e. 08.03.2017 has allowed the IAs as well as the first
appeal. The fact that the contesting respondents to the first appeal,
who are the appellant before us were not represented at the time of
hearing of the first appeal, was not a reason for not giving
opportunity to them to lead evidence in rebuttal."
As seen from the aforesaid decision, the Hon'ble Supreme Court had set aside
the judgment and decree on the ground that the Appellate Court had allowed the
application under Order 41 Rule 27 CPC without granting an opportunity for
the respondent in the said application to lead evidence in rebuttal.
15. In another judgment of this Court in the case of N.Ravi and others
Vs. S.K.Thirunavukkarasu (died) and others reported in 2015 (2) MWN
(Civil) 283, the procedure to be followed by the Courts while dealing with an
application under Order 41 Rule 27 CPC has been discussed in paragraph 15 of
the said judgment. Paragraph 15 of the said judgment reads as follows:
"15. Hence, the procedure adopted by the Lower Appellate
Court to dismiss the Application filed under Order 41, Rule 27, CPC
without even considering the entire evidence and the Appeal on its
merits to find out whether the adduction of additional evidence is
necessary to enable the Lower Appellate Court to pronounce the
Judgment or for any other substantial cause. The requirement of
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
hearing the Application for adducing additional evidence along
with the Appeal on merits does not mean that in all cases, the Order
in the Application under Order 41, Rule 27 should be incorporated
in the Judgment itself. In case, the Lower Appellate Court decides to
allow the Application, a separate Order should be passed and
thereafter recording of additional evidence should be made
following the procedure contemplated under Order 41, Rule 28,
CPC. In case, the Lower Appellate Court, after hearing the
Application along with the Appeal and after considering the entire
evidence, comes to the conclusion that the Application under Order
41, Rule 27, CPC cannot be allowed, it can incorporate the Order
with reasons in the Judgment itself and proceed with the
pronouncement of the Judgment."
As seen from the aforesaid judgment, this Court had held that if the Lower
Appellate Court decides to allow the application filed under Order 41 Rule 27
CPC, a separate order should be passed and thereafter, recording of additional
evidence should be made in accordance with the procedure contemplated under
Order 41 Rule 28 CPC. Therefore, it is well settled law as seen from the
decision of the Hon'ble Supreme Court as well as the decision of this Court
referred to supra that the appellant ought to have been granted opportunity to
lead evidence in rebuttal of the first respondent's contentions in an application
under Order 41 Rule 27 of CPC before marking of the documents as exhibits.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
In the case on hand, admittedly, the procedure contemplated under Order 41
Rule 28 CPC before marking of the documents as exhibits, which is mandatory,
has not been followed by the Lower Appellate Court under the impugned
judgment and decree.
16. In view of the total non-application of mind to the mandatory
procedure contemplated under Order 41 Rule 28 CPC in the impugned
judgment and decree, the impugned judgment and decree has to be set aside by
this Court and the matter has to be remanded back to the Lower Appellate Court
for fresh consideration on merits and in accordance with law. Accordingly, the
impugned judgment and decree dated 25.07.2016 passed by the Lower
Appellate Court in A.S.No.144 of 2015 and I.A.No.96 of 2016 is set aside and
the matter is remanded back to the Lower Appellate Court, namely, the Sub
Court, Kuzhithurai. The Lower Appellate Court on remand shall direct both the
parties to adduce oral evidence before it with regard to the marking of the
additional documents relied upon by the first respondent in his application filed
under Order 41 Rule 27 CPC and also permit the appellant to adduce rebuttal
evidence with regard to the marking of the additional documents relied upon by
the first respondent. The Lower Appellate Court, namely, the Sub Court,
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
Kuzhithurai is directed to dispose of the first appeal within a period of three (3)
months from the date of receipt of a copy of this judgment as well as the
records from this Court. Both the parties are directed to appear before the
Lower Appellate Court, namely, the Sub Court, Kuzhithurai on 17.07.2023.
17. Accordingly, this Second Appeal is allowed. There shall be no order
as to costs. Consequently, connected miscellaneous petition stands closed.
21.06.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes/ No
Lm
To
1.The Sub Court,
Kuzhithurai,
Kanyakumari District.
2.The Principal District Munsif Court,
Kuzhithurai,
Kanyakumari District.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD).No.75 of 2017
ABDUL QUDDHOSE, J.
Lm
S.A.(MD).No.75 of 2017
21.06.2023
https://www.mhc.tn.gov.in/judis
