Madras High Court

Kamalakannan vs Manickasundaram on 16 August, 2024

Author: A.D.Jagadish Chandira

Bench: A.D.Jagadish Chandira

                                                                                  C.R.P. No.3168 of 2024



                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                         DATED 16.08.2024

                                                             CORAM

                         THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

                                     C.R.P. No.3168 of 2024 and C.M.P. No.16931 of 2024


                     Kamalakannan                                                  ... Petitioner

                                                                vs

                     Manickasundaram                                               ... Respondent

                     Prayer: Petition filed under Article 227 of the Constitution of India
                     against the fair and decretal order dated 22.03.2024 passed by the
                     Principal District Court, Erode in I.A. No.3 of 2023 in A.S. No.99 of
                     2013.


                                        For petitioner       : Mr.N.Manokaran
                                        For respondent       : Mr.M.Guruprasad


                                                             ORDER

The revision has been filed against the order dated 22.03.2024

passed by the Principal District Court, Erode in I.A. No.3 of 2023 in A.S.

No.99 of 2013.

2.The brief facts of the case are as follows:

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

The respondent has filed a suit in O.S. No.386 of 2009 on the file

of the Sub Court, Erode, seeking for a declaration and recovery of

possession on the basis of the Sale Deed dated 25.08.2006. The

petitioner/defendant had entered appearance and filed his written

statement and denied all the allegations and averments made in the plaint

as totally false and baseless. The suit was decreed on 27.08.2013 and as

against which, the petitioner had preferred an appeal suit in A.S. No.99 of

2013 on the file of the Principal District Court, Erode and by judgment

dated 18.08.2015, the said appeal has been dismissed. Challenging the

judgment made in A.S.No.99 of 2013, the petitioner had filed a Second

Appeal in S.A. No.48 of 2016 before this Court.

3.This Court, by judgment and decree dated 28.04.2022, had

allowed the Second Appeal and remanded the matter back to the

Appellate Court for fresh consideration granting liberty to the parties to

adduce additional evidence, if they choose to do so. The relevant portion

of the judgment reads thus:

'30.Accordingly, the judgment and decree dated 18.08.2015 passed in A.S. No.99 of 2013 by the

learned Principal District Judge, Erode is set aside https://www.mhc.tn.gov.in/judis

and the matter is remanded back to the First Appellate Court for fresh consideration. However, liberty is granted to the parties to adduce additional evidence, if they choose to do so. The First Appellate Court shall pass orders within a period of six months from the date of receipt of a copy of this order, without being influenced by the observation made in the above Second Appeal.'

4.The petitioner, on the order of remand, had filed I.A. No.3 of

2023 in A.S. No.99 of 2013 under Section 151 of C.P.C., seeking

permission to adduce additional evidence. The Appellate Court, by an

order dated 22.03.2024, had passed the following order:

'(i)That the petitioner/appellant/defendant is hereby permitted to adduce additional evidence on his side by filing a separate application under Order 41 Rule 27 C.P.C. and

(ii)That the application so filed under Order 41 Rule 27 C.P.C. shall be heard along with the appeal suit in A.S. No.99 of 2013 on the file of this Court.' Challenging the same, this civil revision petition has been filed.

5.Mr.N.Manokaran, learned counsel for the petitioner, would

submit that when this Court has granted liberty to the petitioner to adduce

additional evidence, the Appellate Court is bound to accept the https://www.mhc.tn.gov.in/judis

application and ought to have permitted the petitioner to adduce

additional evidence, whereas the Appellate Court has strangely passed an

order granting permission to the petitioner to adduce additional evidence

by filing a separate application under Order XLI Rule 27 C.P.C., and has

stated that the application so filed under Order XLI Rule 27 C.P.C., shall

be heard along with the appeal suit in A.S. No.99 of 2013. Thereby, the

learned counsel for the petitioner seeks to set aside the order impugned.

6.Per contra, learned counsel for the respondent would submit that

though liberty has been granted by this Court for adducing additional

evidence by the Appellate Court, Order XLI Rule 27 of C.P.C., prescribes

certain conditions under which additional evidence can be taken up

during the course of time and only if the parties are able to satisfy such

conditions, the Appellate Court subject to Section 107 C.P.C., can permit

the parties to adduce additional evidence before the Court. The Appellate

Court, finding that the application filed under Section 151 of C.P.C. is not

maintainable, has rightly passed an order directing the petitioner to

adduce additional evidence by filing separate application under Order

XLI Rule 27 C.P.C., and had also observed that it can be heard along with

the appeal suit in A.S. No.99 of 2013. He would further submit that the

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petitioner had earlier filed an application in I.A. No.2 of 2023 in A.S.

No.99 of 2013 and the respondent had also filed a counter and later, the

said application has been withdrawn by the petitioner by filing a Memo

dated 18.12.2023 and thereafter, he had filed an application under Section

151 of C.P.C., and that the Appellate Court has once again granted liberty

to the petitioner to file fresh application under Order XLI Rule 27 of

C.P.C., restricting it to the purpose of pronouncement of judgment in a

particular way and thereby, there is no infirmity in the order and he would

seek for dismissal of the revision.

7.Heard the learned counsel for the petitioner and the learned

counsel for the respondent and perused the evidence available on record.

8. In an earlier round of litigation, this Court, in S.A. No.48 of

2016, while remanding the matter to the Appellate Court, has granted

liberty to the parties to adduce additional evidence in A.S.No.99 of 2013.

This Court is of the opinion that granting liberty does not mean that the

provisions of Code of Civil Procedure, viz.,Section 107 C.P.C., and

conditions and limitations prescribed under Order XVI Rule 27 C.P.C.,

should be ignored. The petitioner had earlier filed an application under

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

Order XLI Rule 27 of C.P.C. and later, he has withdrawn the same.

Subsequently, he had filed an application under Section 151 of C.P.C. for

the very same relief and the Appellate Court had also granted one more

opportunity to the petitioner to file an appropriate application under Order

XLI Rule 27 of C.P.C., and also held that the application filed shall be

heard along with the appeal.

9.In this regard, it is useful to refer the judgment of the Apex

Court in A.Andisamy Chettiar v. A.Subburaj Chettiar, reported in

(2015) 17 SCC 713, wherein it has been held as under:

“11. Under the scheme of Code of Civil Procedure, 1908 (for short “the Code”) whether oral or documentary, it is the trial court before whom parties are required to adduce their evidence. But in three exceptional circumstances additional evidence can be adduced before the appellate court, as provided under S. 107(1)(d) read with Rule 27 of Order XLI of the Code. Rule 27 of Order XLI reads as under: -

“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 –

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(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 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.” (emphasis supplied)

12. From the opening words of sub-rule (1) of Rule 27, quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional https://www.mhc.tn.gov.in/judis

evidence without fulfillment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ex.A-4), nor can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition, i.e. one contained in clause

(b) of sub-rule (1) of Rule 27 is fulfilled or not.

13. In K.R. Mohan Reddy v. Net Work Inc.1, this Court has held as under: -

“19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justice between the parties. The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction…...”

14. In North Eastern Railway Admn. v. Bhagwan Das, this Court observed thus: -

“13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general https://www.mhc.tn.gov.in/judis

rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist…..…”

15. In N. Kamalam (dead) and another v. Ayyasamy and another, this Court, interpreting Rule 27 of Order XLI of the Code, has observed in para 19 as under: -

“……. the provisions of 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 authorize any lacunae or gaps in the evidence to be filled up. The authority and jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.”

16. In Union of India v. Ibrahim Uddin and another, this Court has held as under: -

“49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The https://www.mhc.tn.gov.in/judis

admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced…………..”

17. Learned counsel for the appellant argued before us that the High Court, in revision, at an interim stage of appeal pending before the lower appellate court, should not have interfered in the matter of requirement of additional evidence.

18. We have considered the argument advanced on behalf of the appellant and also perused the law laid down by this Court as to the exercise of revisional power under Section 115 of the Code in such matters. In Mahavir Singh and others v. Naresh Chandra and another5, explaining the scope of revision in the matters of acceptance of additional evidence by the lower appellate court interpreting expression “or for any other substantial cause” in Rule 27 of Order XLI, this Court has held as under: -

“The words “or for any other substantial cause” must be read with the word “requires”, which is set https://www.mhc.tn.gov.in/judis

out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kessowji Issur v. G.I.P. Rly. [ILR (1907-08) 31 Bom 381]. It is under these circumstances such a power could be exercised. Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115 CPC, have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order 41 Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC.”

19. In Gurdev Singh and others v. Mehnga Ram and another6, this Court, on similar issue, has expressed the view as under: -

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“We have heard learned counsel for the parties. The grievance of the appellants before us is that in an appeal filed by them before the learned Additional District Judge, Ferozepur, in an application under Order XLI, Rule 27(b), Code of Civil Procedure (CPC) the learned Additional District Judge at the final hearing of the appeal wrongly felt that additional evidence was required to be produced as requested by the appellants by way of examination of a handwriting expert. The High Court in the impugned order exercising jurisdiction under Section 115 CPC took the view that the order of the appellate court could not be sustained. In our view the approach of the High Court in revision at that interim stage when the appeal was pending for final hearing before the learned Additional District Judge was not justified and the High Court should not have interfered with the order which was within the jurisdiction of the appellate court. The reason is obvious. The appellate court hearing the matter finally could exercise jurisdiction one way or the other under Order XLI, Rule 27 specially clause (b).

If the order was wrong on merits, it would always be open for the respondent to challenge the same in accordance with law if an occasion arises to carry the matter in second appeal after an appellate decree is passed. But at this interim stage, the High https://www.mhc.tn.gov.in/judis

Court should not have felt itself convinced that the order was without jurisdiction. Only on this short question, without expressing any opinion on the merits of the controversy involved and on the legality of the contentions advanced by both the learned counsel for the parties regarding additional evidence, we allow this appeal, set aside the order of the High Court.”

20. In view of the law laid down by this Court, as discussed above, regarding exercise of revisional powers in the matter of allowing the application for additional evidence, when appeal is pending before the lower appellate court, the impugned order passed by the High Court cannot be upheld and the same is set aside. However, to do complete justice between the parties, we think it just and proper to direct the first appellate court to decide the application for additional evidence afresh in the light of observations made by this Court regarding principles on which such an application can be allowed or rejected. We order accordingly. We further clarify that we have not expressed any opinion as to the merits of the case. Accordingly, the appeal is disposed of. No order as to costs.”

10.In view of the above, this Court does not find any infirmity or

illegality in the order passed by the learned Appellate Judge. However,

while allowing I.A.No.3 of 2023 in A.S.No.99 of 2013, in order to give https://www.mhc.tn.gov.in/judis

one more opportunity to the petitioner, the Appellate Court had rightly

permitted the petitioner to file an application under Order XLI Rule 27 of

C.P.C., to adduce additional evidence.

11.In view of the above, the civil revision petition stands disposed

of directing the petitioner to file an application under Order XLI Rule 27

of C.P.C., before the Appellate Court within a period of one week from

the date of receipt of a copy of this order. On such application being

filed, the Appellate Judge shall hear the same on its own merits and

dispose of the appeal as expeditiously as possible, preferably within a