Madras High Court
V.Murugan vs P.Annadurai on 21 March, 2023
S.A.(MD)No.38 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.38 of 2017
V.Murugan ... Appellant
/Vs./
Athima Munivar Samudhaya Trust,
East Street, Nagercoil
Agasteeswaram Taluk, Kanyakumari District,
Represented by its Trustees,
1.P.Annadurai
2.S.Govindhaswamy ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the judgment and decree passed in A.S.No.46 of 2014,
on the file of the Principal Sub Court, Nagercoil, dated 23.09.2016
reversing the judgment and decree passed in O.S.No.467 of 2010 on the
file of the Principal District Munsif Court, Nagercoil, dated 18.02.2014.
1/8
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.38 of 2017
For Appellant : Mr.V.Muthukamatchi,
For M/s.K.Suyambulingabharathi
For Respondent : Mr.V.Meenakshi Sundaram
JUDGMENT
This Second Appeal has been filed challenging the Judgment and
Decree of the lower appellate Court dated 23.09.2016 passed by the
Principal Sub Court, Nagercoil, Kanyakumari District in A.S.No.46 of
2014.
2. The appellant is the defendant in the suit. The suit was filed by
the respondent Trust in O.S.No.467 of 2010 on the file of the Principal
District Munsif Court, Nagercoil, seeking for recovery of possession and
for permanent injunction and for recovery of future mesne profits. The
respondent / plaintiff claimed that the appellant / defendant is their
tenant, who did not pay arrears of rent and also claimed that the appellant
/ defendant is attempting to alter the superstructure in the suit schedule
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S.A.(MD)No.38 of 2017
property. The same was disputed by the appellant / defendant before the
trial Court as seen from his written statement. The trial Court, by its
judgment and decree dated 18.02.2014 passed in O.S.No.467 of 2010
dismissed the suit filed by the respondent / plaintiff on the ground that
they have not been able to establish through oral and documentary
evidence that they have put up the construction, which is being occupied
by the appellant / defendant.
3. Aggrieved by the judgment and decree dated 18.02.2014 passed
by the Principal District Munsif, Nagercoil, in O.S.No.467 of 2010, the
respondent / plaintiff filed the first appeal before the Principal Sub Court,
Nagercoil in A.S.No.46 of 2014. The lower appellate Court partly
allowed the appeal filed by the respondent / plaintiff by granting the
relief of permanent injunction as prayed for in the suit, namely to restrain
the appellant / defendant from altering the superstructure in the suit
schedule property. However, the lower appellate Court with regard to the
recovery of possession relief sought for by the respondent / plaintiff, the
parties were relegated to the Rent Control Court and they were directed
to seek the relief with regard to recovery of possession before the Rent
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S.A.(MD)No.38 of 2017
Control Court.
4. Before the lower appellate Court, the respondent / plaintiff filed
an application under Order 41 Rule 27 of C.P.C., seeking permission of
the lower appellate Court to receive the additional documents to
substantiate their claim that the appellant / defendant had put up the
construction over the suit schedule property and the said construction
also belongs to them absolutely. The lower appellate Court has also
taken into consideration the said contention and the documents filed
along with the same and only thereafter, has come to the conclusion that
the respondent / plaintiff is entitled for the relief of permanent injunction.
5. Admittedly, the appellant / defendant was not given a chance to
cross examine the respondent / plaintiff’s witness with regard to the
additional documents filed by the respondent / plaintiff before the lower
appellate Court through an application filed under Order 41 Rule 27 of
C.P.C. Necessarily, the appellant / defendant ought to have been granted
an opportunity to rebut the evidence placed by the respondent / plaintiff
before the lower appellate Court by allowing him to cross examine the
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S.A.(MD)No.38 of 2017
respondent / plaintiff’s witness with regard to the same. Having not been
allowed to rebut the additional evidence let in by the respondent /
plaintiff before the lower appellate Court, this Court is of the considered
view that the matter has to be remanded back to the trial Court for fresh
consideration on merits and in accordance with law, after affording both
the parties with an equal opportunity to rebut the contentions through
oral and documentary evidence.
6. Even though this Court had admitted the Second Appeal on
16.02.2017, the following substantial question of law, which is very
crucial for the effective determination of the dispute between the parties
has not been included, namely, Whether the lower appellate Court was
right in partly allowing the appeal filed by the respondent / plaintiff
without giving an opportunity for the appellant / defendant to rebut the
additional evidence placed on record by the respondent / plaintiff by
filing an application under Order 41 Rule 27 of C.P.C., and without
affording an opportunity of cross examining the respondent / plaintiff’s
witness with regard to the same?
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S.A.(MD)No.38 of 2017
7. In view of the aforesaid substantial question of law formulated
by this Court today, necessarily, the matter will have to be remanded back
to the trial Court for fresh consideration on merits and in accordance with
law and the impugned Judgments and Decree of Courts below have to be
set aside. Accordingly, the impugned Judgment and Decree of the lower
appellate Court dated 23.09.2016 passed in A.S.No.46 of 2014 on the file
of the Principal Sub Court, Nagercoil, Kanyakumari District and the
Judgment and Decree passed in O.S.No.467 of 2010 on the file of the
Principal District Munsif Court, Nagercoil, dated 18.02.2014 are hereby
set aside and the matter is remanded back to the trial Court, namely, the
Principal District Court, Nagercoil, Kanyakumari District in O.S.No.467
of 2010 for fresh consideration on merits and in accordance with law.
8. Both the parties are directed to appear before the trial Court,
namely, the Principal District Court, Nagercoil, Kanyakumari District in
O.S.No.467 of 2010 on 17.04.2023 without fail and thereafter, the trial
Court, namely the Principal District Court, Nagercoil, Kanyakumari
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S.A.(MD)No.38 of 2017
District, after framing the additional issues shall proceed with the matter
in accordance with law and pass a final Judgment and Decree within a
period of six months thereafter. This Second Appeal is allowed
accordingly. There shall be no order as to costs.
21.03.2023
Index : Yes / No
NCC : Yes / No
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TO:
1.The Principal Sub Court, Nagercoil.
2.The Principal District Munsif Court, Nagercoil.
3.The Section Officer,
VR Section, Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.38 of 2017
ABDUL QUDDHOSE, J.
Sm
Judgment made in
S.A.(MD)No.38 of 2017
Dated:
21.03.2023
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