Madras High Court
M.Rangasamy vs Appachi @ Appaji (Died) on 8 September, 2023
S.A.No.1765 of 2003
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 29.09.2023 Delivered on: 10.11.2023
CORAM:
THE HONOURABLE MR.JUSTICE P.B.BALAJI
S.A.No.1765 of 2003
&
C.M.P.No.22527 of 2023
M.Rangasamy ... Appellant
Vs.
1.Appachi @ Appaji (died)
2.KAmalam (died)
3.R.Ranganathan
4.T.Arumugam S/o Thirumurthy
5.N.Kittusamy
6.Nageswari
7.N.Palanisamy
8.S.Thangaraj
9.Gandhimathi
10.The Sub Registrar
1/20
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
Palladam, Mangalam road
Palladam-641 664
Coimbatore District ... Respondents
(R1 and R2 died
R4 to R10 are impleaded
vide Court order dated
08.09.2023 made in
C.M.P.No.3110 and 19624 of 2023
in S.A.No.1765 of 2003)
PRAYER: Second Appeal filed under Section 100 of C.P.C against the
judgment and decree dated 12.06.2003 made in A.S.No.50 of 2002 on the file
of I Additional District Court, Coimbatore in reversing the judgment and
decree dated 30.04.2001 made in O.S.No.131 of 1990 on the file of Sub-
Ordinate Court at Tiruppur.
For Appellant : Mr.R.Srinivas, Senior Counsel
for
Mr.S.Adaikkappan @ Sithiraianandam
For Respondents : Mr.R.Ramesh for R4
Mr.C.Prabhakaran for R5
Mr.Dinesh Kumar for R6
Mr.Prasanth for R7
2/20
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
Mr.V.Ragavachari, Senior Counsel
for
Mr.N.Umapathi for R8
Mr.P.G.Gurusamy for R9
Dr.S.Suriya, AGP (CS) for R 10
JUDGMENT
The unsuccessful plaintiff in a suit for specific performance is the
appellant before this Court.
2. The case of the appellant, as plaintiff in the suit was that the suit
property belong to defendants 1 and 2 who had purchased the same from
Srinivasa Naidu and others in and by sale deed dated 14.07.1978. The
plaintiff entered into a sale agreement with the defendants 1 and 2 for a total
sale consideration of Rs.68,539/- in respect of 7 acres out of total 8.96 acres
owned by defendants 1 and 2. According to the plaintiff, he paid an advance
of Rs.10,000/- and the balance was agreed to be paid on or before 01.02.1990
and thereafter the sale deed was to be executed. Though the plaintiff was
ready and willing to pay the balance sale consideration according to the
plaintiff, the defendants 1 and 2 were evading to execute the sale deed and
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
demanding an enhanced rate and were also trying to create encumbrance to
defeat the rights of the plaintiff. The plaintiff caused a lawyer's notice on
20.01.1990, calling upon them to receive the balance sale consideration and
execute the sale deed in terms of the agreement and not to indulge in creating
any further encumbrance over the property. They also caused a paper
publication to such effect.
3. The defendants 1 and 2 replied to the said notice denying the sale
agreement and claiming that they have executed only a mortgage in favour of
the 3rd defendant which according to the plaintiff was a sham and nominal
document created by the defendants 1 and 2 colluding with the 3 rd defendant
the mortgagee. The mortgagee has been arrayed as the 3rd defendant in the
suit. According to the plaintiff, he is prepared to deposit the balance sale
consideration as and when the Court directs and the suit is not barred by
limitation having been filed on 05.04.1990.
4. The said suit was resisted by the defendants 1 and 2 on the ground
that they never executed any sale agreement in favour of the plaintiff and
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
they also never received any advance from the plaintiff. According to the
defendants, the suit agreement was fabricated and forged. It is also
contended by the defendants that the plaintiff might have created the
agreement using the blank signed, stamp papers and other documents, in
order to take away the property of the defendants. It is further pleaded in the
written statement that on 19.07.1989, the defendants have entered into an
agreement of sale with one Mr.Shanmugam and a portion of the property has
also been subsequently conveyed to him, in and by a registered sale deed on
19.01.1990 for a consideration of Rs.75,000/- and that the plaintiff was fully
aware of the said sale also. Further, it is specifically averred by the
defendants that the plaintiff has no wherewithal to advance a sum of Rs.
10,000/- and the plaintiff has approached the Court with a false case.
5. Before the Trial Court, plaintiff examined himself as P.W.1 and one
Mr.Palanisamy as P.W.2 and marked Exs.A1 to A6. On the side of the
defendants the 1st and 2nd defendants was examined as D.W.1 and D.W.2
respectively and no documents were exhibited.
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
6. The Trial Court relying on the evidence of P.W.2, the witness held
that the agreement was indeed a sale agreement and the defendants were
bound by the same. The Trial Court granted a decree of specific performance
in favour of the plaintiff. As against the same, defendants 1 and 2 preferred
A.S.No.50 of 2002. In the said Appeal I.A.No.327 of 2002 was filed under
Or.41 R.27 C.P.C seeking to receive the sale deed dated 17.01.1990 executed
by the appellants in favour of Shanmugam.
7. The First Appellate Court rendered a finding that the sale agreement
entered into 06.11.1989 could not be true as the stamp papers were purchased
only on 07.11.1989 and that when two acres have been sold for Rs.75,000/-
at Rs.37,500/- per acre it was not probable for 7 acres being sold for a throw
away price of Rs.68,500/-. Thus, the First Appellate Court found that it was
only a loan transaction and blank papers had been misused to bring about the
sale agreement based on which alone the suit for specific performance came
to be filed.
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
8. Aggrieved by the said judgment and decree of the First Appellate
Court, the plaintiff has preferred the present Second Appeal.
9. I have heard Mr.R.Srinivas, learned Senior Counsel for
Mr.S.Adaikkappan @ Sithirarianandam, Mr.R.Ramesh for R4,
Mr.C.Prabhakaran for R5, Mr.Dinesh Kumar for R6, Mr.Prasanth for R7,
Mr.V.Ragavachari, learned Senior counsel for Mr.N.Umapathi for R8,
Mr.P.G.Gurusamy for R9 and Dr.S.Suriya, AGP(CS) for R10.
10. Upon hearing the arguments of the learned Senior counsel on either
side, I formulate the following substantial questions of law:
i) Whether the procedure adopted by the First Appellate Court in
admitting additional evidence under Or.41 R.27 is proper ?
ii) Whether the First Appellate Court was justified in rendering a
finding that the agreement of sale was suspicious on a ground not pleaded or
raised before the Trial Court viz., the discrepancy in the dates of the sale
agreement and the stamp paper issuance?
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
11. The learned Senior counsel for the appellant, besides contending
that the Lower Appellate Court had not followed the mandate of Or.41.R.27
and 28 of C.P.C in taking on file the additional documents and also placing
heavy reliance on the same to reverse the well considered findings of the
Trial Court, would also submit that there were subsequent developments in
the matter viz., despite the defendants setting up a defence that they sold the
portion of the suit property of an extent of 2 acres for Rs.75,000/- to one
Shanmugam, subsequently the defendants 1 and 2 themselves have filed a
suit challenging the said sale deed and have obtained a decree. In such
circumstances, learned Senior counsel for the appellant submits that fraud has
been played on the Court by the defendants 1 and 2 and placing reliance on
the judgment of the Hon'ble Supreme Court in S.P.Chengalvaraya Naidu
(dead) by LRs Vs. Jagannath (dead) by LRs and Ors, (1994)1 SCC 1, the
Senior counsel would impress upon this Court to treat the judgment and
decree obtained by the defendants as a nullity.
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
12. He would also place reliance on H.S.Goutham Vs. Rama Murthy
and Another, reported in 2021 5 SCC 241, where the Hon'ble Supreme Court
held that when the procedure under Or.41 R.27 and 28 of the C.P.C. is not
followed, parties to the appeal cannot be permitted to lead additional
evidence.
13. Here interestingly, the plaintiff himself has come up with
C.M.P.No.22527 of 2023 to lead additional evidence and mark additional
documents. A detailed counter affidavit has been filed by the 8th respondent
stating that the documents sought to be produced are in no way concerned
with the present lis and therefore they cannot be received in evidence. The
documents that are sought to be filed at this Second Appeal stage are to show
the subsequent events viz., the factum of the defendants 1 and 2 approaching
the Civil Court challenging the sale deed in favour of Shanmugam which was
the principal defence set up by the defendants 1 and 2 in the suit for specific
performance laid by the plaintiff. In other words, the defendants 1 and 2 had
pleaded in the written statement that they had entered into an unregistered
sale agreement even prior to the suit sale agreement Ex.A1 and that
subsequently, in furtherance of the said prior sale agreement in favour of
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
Shanmugam, they have also executed a sale deed for a consideration of Rs.
75,000/- in respect of 2 acres at the rate of Rs.37,500/- per acre. This was
also pointed out by the defendants 1 and 2 in the proceedings that when 1
acre was sold was Rs.37,500/-, it was unbelievable for the
defendants 1 and 2 to agree to sell a property in extent of 7 acres for a total
sum of Rs.68,589/-.
14. The Trial Court after assessing and analysing the pleadings, oral
and documentary evidence adduced by the parties found that Ex.A1 was a
genuine sale agreement and not a forged or fabricated document as contended
by defendants 1 and 2. The Trial Court also found that the plaintiff was ready
and willing to perform his part of sale agreement and decreed the suit.
However, pending the appeal, the defendants 1 and 2 sought to mark the sale
deed executed by them in favour of said Shanmugam on the ground that
though they have pleaded about the said sale deed in the written statement,
they were not in a position to mark the said document. The First Appellate
Court allowed the said application filed by the defendants 1 and 2 and relying
upon the same, reversed the findings of the Trial Court and ultimately
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
dismissed the suit for specific performance.
15. Now before this Court, it is the turn of the plaintiff to file
additional documents to bring to light the subsequent events to show that
when the defendants 1 and 2 who had primarily relied on the sale deed
executed in favour of one Shanmugam to defeat the plaintiffs' case, have
themselves filed a suit challenging the said sale deed and also succeeded in
the said suit. According to the appellant, these documents now sought to be
produced would be throwing true light on the relevant circumstances of the
case especially in the light of the defence set up by the defendants 1 and 2 in
the suit heavily relying on the sale deed executed by them in favour of
Shanmugam.
16. Per contra, Mr.V.Ragavachari, learned Senior counsel appearing
for the 8th respondent, a subsequent purchaser of the suit property, would
contend that the 1st and 2nd defendants died way back on 08.09.2010 and
30.04.2019 and the plaintiff never took any steps to bring on record their
legal heirs and only recently the applications were filed after a lapse of 13
years to bring on record the legal heirs of the defendants 1 and 2. He would
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
place reliance on judgment of this Court in Govindappa Naidu Vs. C.Sidda
Chetty and Ors, reported in 2003 SCC Online Mad 435, where in a suit for
specific performance, this Court held that delay in prosecuting the appeal and
representing the papers would cause severe hardship to the defendants and
third parties and therefore, held that the relief of specific performance cannot
be granted. However, in the facts of the said case, I am able to see that there
was a delay in prosecuting the Appeal at the filing stage. Though an Appeal
was filed, there was huge delay in representing the papers and in the
interregnum period, the property had changed hands and improvements were
made thereon. In such circumstances, this Court held that the relief of
specific performance at such distance of time would cause severe hardship to
the defendants as well as third parties. However, in the facts of the present
case, the Trial Court had decreed the suit and the Appeal was also filed in
time and the decree of the Trial Court came to be reversed, as against which
the plaintiff filed the Second Appeal in time. It is only pending the Second
Appeal where the delay was occasioned on account of not taking steps for
bringing on record the legal representatives of the deceased respondents 1
and 2. However, such applications were allowed by this Court, as it was not
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
seriously opposed by the counsel for the respondents who were keen on
getting the Appeal itself finally disposed of. Therefore, under such
circumstances, I am unable to apply the ratio laid down by this Court in
Govindappa Naidu's case to the facts of the present case. Be that as it may
the First Appellate Court has chosen to allow I.A.No.327 of 2022 filed under
Order 41 Rule 27 C.P.C, and admitted the sale deed dated 17.01.1990
executed by defendants 1 and 2 favour of Shanmugam. The Court ought to
have followed the mandatory procedure contemplated under Order 41 Rule
28 of the Code of Civil Procedure. Order 41 Rule 28 C.P.C. reads as under:
“Or.41.R.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.”
17. Thus, when the First Appellate Court had decided to admit the sale
deed sought to be produced by the defendants 1 and 2 as additional evidence
in the appeal, the Appellate Court should have recorded evidence either by
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
itself, or directed the Trial Court to take evidence and send the same to it for
further decision. One another circumstance, that weighs in favour of the
appellant is that the First Appellate Court, without any pleading whatsoever,
has on its own discussed the discrepancy in the date of issuance of stamp
paper on which the sale agreement has been typed and the date of sale
agreement and come to a conclusion that the agreement could not have been
entered into on 06.11.1989 as the stamp papers were purchased on
07.11.1989. The First Appellate Court has ought to have given an
opportunity to the parties to address this discrepancy before jumping to
conclusions on its own. Now, yet another twist in the tale is that the sale
deed on which the defendants 1 and 2 placed heavy reliance on the Trial
Court as well as the First Appellate Court was challenged by the defendants 1
and 2 themselves and documents relating to these proceedings are now
sought to be produced on the side of the appellant, by way of additional
evidence, invoking Or.41 R.27 C.P.C. Considering all the above, I am of the
view that the matter has to be remitted back to the First Appellate Court to
give a fair opportunity to the parties to establish the truth and genuineness as
well as the admissibility of the document viz., the sale deed executed by the
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
defendants 1 and 2 in favour of Shanmugam on 19.01.1990 and also the sale
agreement dated 06.11.1989 with specific reference to the truth and
genuineness of the sale agreement dated 06.11.1989 with specific reference
to the discrepancy in the date of issuance/purchase of stamp paper being
07.11.1989, moreover, the First Appellate Court has only relied on the
additional document admitted by way of order under Or.41 R.27 of C.P.C to
non suit the plaintiff.
18. I am conscious of the fact that the suit is only for specific
performance of an agreement of sale. However, when the issue relating to the
very genuineness of the sale agreement is still looming large on account of
the discrepancy of the dates as discussed above being pointed out by the
First Appellate Court and not being an issue raised by the parties either
during Trial or even during the course of arguments before the First
Appellate Court, it is only proper that the Appellate Court shall decide the
Appeal following the procedure set out herein below:
i) First Appellate Court shall permit the parties to lead evidence in
respect of sale agreement dated 06.11.1989, sale deed dated 19.01.1990 and
the additional documents sought to be produced by the appellant before this
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
Court in Second Appeal subject to proof, relevancy and admissibility of the
documents now sought to be filed as additional evidence. Upon such
evidence being let in by the parties, the First Appellate Court shall render a
finding with regard to the genuineness of the sale agreement dated
06.11.1989 in the light of the discrepancy in the dates between the date of
agreement and date of purchase of stamp paper and subject to such finding
and findings to be given in respect of the other additional documents sought
to be produced by the plaintiff, shall go into the issue of readiness and
willingness on the part of the plaintiff and his entitlement to a decree for
specific performance thereof.
19. Though the additional documents now sought to be produced by
the appellant are seriously objected to by the learned Senior counsel for the
8th respondent on the ground that they does not pertain to the lis, in view of
the discussions made herein above and the First Appellate Court having
placed heavy reliance on the additional document produced on the side of the
defendants 1 and 2 to non suit the plaintiff, I am inclined to allow C.M.P.No.
22527 of 2023 filed for production of additional documents. However, the
documents shall be received by the First Appellate Court subject to
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
proof,relevancy and admissibility alone. I am fortified by the decision of the
Hion'ble Supreme Court in Sanjay Kumar Singh Vs. State of Jharkhand,
reported in (2022)-7-SCC-247, where the Hon'ble Supreme Court has held
that admissibility of additional evidence under Or.41 R.27 C.P.C does not
depend upon the relevancy of issue on hand or whether the applicant
proposing to adduce such additional evidence had an opportunity at an earlier
stage or not but it would depend upon the whether or not, the Court requires
the evidence sought to be adduced to enable it to pronounce judgment or any
other substantial cause. Therefore, in line with the said ratio, I find, in the
facts of the present case that the additional evidence sought to be produced
by the appellant would have a direct bearing on a final decision in the
Appeal. More over, in the present case, it was defendants 1 and 2 who
belatedly sought to mark the sale deed executed by them, conveying an extent
of 2 acres in favour of one Subramaniam for a total sale consideration of
Rs.75,000/- (Rs.37,500/-). The present documents that are sought to be
produced as additional evidence by the plaintiff are only follow up of the said
sale deed and the subsequent events that have occurred post the execution of
the said sale deed which has been allowed to mark as an additional document
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
before the First Appellate Court. Therefore, I am of the opinion that the
production of additional evidence will certainly enable the First Appellate
Court to pronounce a considered judgment and there is substantial cause for
permitting the additional documents sought to be adduced by the appellant,
as already aforementioned, subject to proof, relevancy and admissibility of
the same. In fine, C.M.P.No.22527 of 2023 is allowed. It goes without saying
that the parties will be required to lead evidence regarding the documents that
are sought to be produced and and also to enable proof of the agreement of
sale, dated 06.11.1989 and sale deed dated 19.01.1990 that have already been
exhibited.
20. In fine, the Second Appeal is allowed and the judgment and decree
dated 12.06.2003 made in A.S.No.50 of 2002 on the file of I Additional
District Court, Coimbatore is set aside and the matter is remitted back to the
I Additional District Court, Coimbatore to complete the exercise of hearing
the parties with regard to the additional documents sought to be produced,
take evidence and decide the main appeal within a period of four months
from the date of receipt of a copy of this judgment. However, there shall be
no order as to costs.
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
Internet:Yes 10.11.2023.
Index:Yes/No
Neutral Citation:Yes/No
Speaking/Non-speaking order
kpr
To
1.The I Additional District Judge,
Coimbatore.
2. The Sub-Ordinate Judge,
Tiruppur.
https://www.mhc.tn.gov.in/judis
S.A.No.1765 of 2003
P.B.BALAJI, J.,
kpr
Judgment in
S.A.No.1765 of 2003
&
C.M.P.No.22527 of 2023
10.11.2023
https://www.mhc.tn.gov.in/judis
