Madras High Court
Sethuraman @ Ramasamy vs Alagappan on 30 March, 2023
A.S.(MD).No.159 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.03.2023
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD).No.159 of 2021
and
C.M.P.(MD).No.4367 of 2022
1.Sethuraman @ Ramasamy
Valliammai (Died) ... Appellant
Vs.
1.Alagappan
2.Solaimalai
3.Kumar
4.Kailasam @ Raju ... Respondents
PRAYER: The Appeal Suit is filed under Section 96 of the Civil Procedure
Code, against the judgment and decree dated 13.03.2020 passed in O.S.No.64
of 2018 on the file of the Additional District and Sessions Judge, Sivagangai.
For Appellant : M/s. N.Sundaresan
For Respondents : Mr.M.Vallinayagam, Senior counsel
for Mr.J.Anandkumar
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A.S.(MD).No.159 of 2021
JUDGMENT
This appeal has been filed against the judgment and decree dated
13.03.2020 in O.S.No.64 of 2018 on the file of the Additional District and
Sessions Judge, Sivagangai.
2. The suit has been filed by the appellant claiming right on the suit
property. It is stated by the appellant that the suit property originally belonged
to one Rama.Kulavan Ambalam and the same was allotted to him in a final
decree proceedings in I.A.No.701 of 1994. It is also stated that the first plaintiff
is the adopted son of Rama.Kulavan Ambalam and the second plaintiff is his
wife. Hence, they filed the suit against the defendants for declaration and
permanent injunction. The trial Court has framed the following issues:
(i) Whether the plaintiffs are the title holders of the items 1 and
2 of the suit scheduled properties?
(ii) Whether the plaintiffs are entitled to the relief of
declaration and the consequential relief of permanent prohibitory
injunction as sought for?
3. The defendants have remained ex-parte before the trial Court. The trial
Court has answered the issue Nos.1 and 2 and dismissed the suit mainly on the
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A.S.(MD).No.159 of 2021
ground that there is no document filed or evidence adduced to prove the so
called adoption of the first plaintiff by Rama.Kulavan Ambalam and similarly,
the order made in the final decree proceedings has also not been filed. Only on
that ground the suit has been dismissed. Challenging the same, the present
appeal suit has been filed.
4. During the pendency of the appeal suit, an application has been filed
under Order 41 Rule 27 and 151 of Civil Procedure Code, to receive two
additional documents. One is relating to an unregistered document evidencing
the so called adoption in the presence of witnesses and the other document is a
copy of partition deed, wherein the plaintiff is recognised as adopted son.
Hence, it is the contention of the appellant that those documents are necessary
to establish the adoption and his right over the suit property. Hence, an
application has been filed to receive the additional documents.
5. The learned Senior counsel appearing for the respondents would
submit that since the so called adoption deed is not a registered one, the same
cannot be admitted. That apart, the partition deed wherein Rama.Kulavan
Ambalam is not a party. Therefore, any statement relating to the adoption will
not be relevant. Hence, he opposed the same.
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A.S.(MD).No.159 of 2021
6. It is relevant to note that as per Order 41 Rule 27 of C.P.C., when the
parties seeking to produce additional evidence, establishes that despite the
exercise of due diligence, such evidence was not within his knowledge or could
not, after the exercise of due diligence, be produced by him at the time when
the decree appealed against was passed or 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.
7. Since the very crux of the matter revolves around the adoption, certain
documents have been filed. Though its admissibility has been objected in the
appellate stage, this Court is of the view that the same could be decided only at
the time of trial and not at this stage. Therefore, the very finding of the trial
Court in dismissing the suit mainly on the ground that there was no document
produced to prove the adoption and the decree and judgment has to be set aside
and the matter requires re-trial and an opportunity should be given to the parties
to adduce evidence in this regard. Accordingly, as per Order 41 Rule 27 of
C.P.C., the appellant is entitled to file those documents before the trial Court
and the finding of the trial Court is set aside and the matter is remanded back to
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A.S.(MD).No.159 of 2021
the trial Court for re-trial and the trial Court shall give an opportunity to both
sides to adduce evidence.
8. Since the defendants have already set ex-parte, they may be given an
opportunity to cross-examine the plaintiff side evidence. Since the matter is
now remanded back to the trial Court, the trial Court may give an opportunity
to the defendants also to file necessary written statement in this regard. The
plaintiff is also entitled to file additional pleadings and adduce evidence to
prove the short issue of adoption and the plaintiff is entitled to prove the
entitlement in the suit property and the parties are at liberty to adduce evidence
and proper opportunity should be given to both sides and the trial shall be
completed within a period of nine months from the date of receipt of a copy of
this order.
9. With the above directions, this Appeal Suit is allowed. No costs.
Consequently, the connected Miscellaneous Petition is closed.
30.03.2023
akv
Note:
Registry is directed to return the original documents filed
in C.M.P.(MD).No.4367 of 2022, to the appellant/plaintiff.
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A.S.(MD).No.159 of 2021
To
The Additional District and Sessions Judge,
Sivagangai.
https://www.mhc.tn.gov.in/judis
A.S.(MD).No.159 of 2021
N.SATHISH KUMAR,J.
akv
A.S.(MD).No159 of 2021
30.03.2023
https://www.mhc.tn.gov.in/judis
