Thirumalaiammal vs Muthaiya Karaiyalar
2025 Latest Caselaw 1331 Mad

Citation : 2025 Latest Caselaw 1331 Mad
Judgement Date : 23 July, 2025

Madras High Court

Thirumalaiammal vs Muthaiya Karaiyalar on 23 July, 2025

Author: M.Dhandapani

Bench: M.Dhandapani

CRP(MD). No.1223 of 2022

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Dated : 23/07/2025

CORAM

THE HONOURABLE MR. JUSTICE M.DHANDAPANI

CRP (MD). Nos.1223 and 1224 of 2022
and CMP(MD) No.5023 of 2022

Thirumalaiammal ... Petitioner in
both petitions

Muthaiya Karaiyalar ... Respondent in
both petitions

COMMON PRAYER :-Civil Revision Petitions filed under Article 227
of The Constitution of India to set aside the fair and decreetal order dated
12.04.2022 passed in I.A.Nos. 2 and 3 of 2019 in A.S. No. 93 of 2019 on
the file of the Principal Sub Court, Tenkasi.
For Petitioner : Mr.V.Meenakshi Sundaram
For Respondent : Mr.P.Thiyagarajan

ORDER

The Civil Revision Petition is filed against the fair and decreetal

order dated 12.04.2022 passed in I.A.Nos. 2 and 3 of 2019 in A.S. No. 93

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of 2019 on the file of the Principal Sub Court, Tenkasi.

2. The petitioner is the plaintiff in OS No.539/2012 on the file of

the Principal District Munsif Court, Tenkasi. The said suit is filed for

declaration and injunction and the suit was also decreed in favour of the

petitioner against which, the respondent/defendant filed an appeal before

the lower appellate Court in AS No.93/2019. In the said appeal, the

respondent herein filed two interlocutory applications in IA Nos.2 and 3

of 2019 for receiving the additional evidence under Order XLI Rule 27 of

the Code of Civil Procedure and also to receive the stamp duty as ordered

by this Court in CRP(MD) No.686/2016. Both the petitions came to be

allowed. Challenging both the orders, the petitioner is before this Court

with these Civil Revision Petitions.

3. The learned counsel for the petitioner would submit that as per

Order XLI Rule 27 of the Code of Civil Procedure, after receiving the

additional evidence and documents, at the stage of appeal, the

applications for receiving additional evidence need not be heard

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separately and both the applications for additional evidence and

document can be heard along with the appeal and disposed of. The

learned counsel would submit contrary to the provisions, in the present

case, both the interlocutory applications were independently decided

without hearing the appeal and hence, the order is not sustainable.

However, the learned counsel would submit that it is suffice if a direction

is issued to the lower appellate Court to follow the procedure

contemplated under Order 41 Rule 27 of the Code and Order 47 Rule 28

of the Code before deciding the appeal.

4. For the said submission, the learned counsel for the respondent

has no serious objection. However, the learned counsel would submit

that in respect of receiving additional stamp duty, an order may be passed

to pay the additional stamp duty in terms of Section 35 of the Stamp Act

and in terms of Section 49 of the Tamil Nadu Registration Act for

collateral purposes. He would further submit that in that case, the order

in IA No.3/2019 may be set aside and the respondent may be permitted to

file a clarification petition before this Court in CRP(MD) No.686/2016,

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as to whether the stamp duty under Section 35 of the Stamp Act to be

paid or not in the appeal stage.

5. I have considered the rival submissions and perused the

materials available on record.

6. Considering the submissions made on either side, without

adverting to the merits or the contentions raised on either side, the Civil

Revision Petitions are disposed of in the following terms:

(i) CRP(MD) No.1223 of 2022 is disposed of with a direction to

the trial Court to decide the appeal in accordance with Order XLI Rule 27

and Order XLI Rule 28 of the Code before deciding the appeal;

(ii) For payment of stamp duty in terms of Section 35 of the Stamp

Act for collateral purpose under Section 49 of the Tamil Nadu

Registration Act, it is for the respondent to pay stamp duty in the suit.

However, since the suit is decreed in favour of the petitioner/plaintiff and

the judgment and decree of the trial Court is applicable for payment of

stamp duty in the appeal stage, unless the respondent gets a clarification

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from this Court with regard to payment in terms of Section 35 of the

Stamp Act, the respondent could not proceed with the appeal.

Accordingly, the order in IA No.3 of 2019 is set aside and CRP(MD) No.

1224 of 2022 is allowed and liberty is granted to the respondent to file

appropriate application before this Court in the manner known to law

with regard to payment of stamp duty in terms of Section 35 of the Stamp

Act in the appeal stage. However, stamp duty to be paid by the

respondent is subject to the outcome of the clarification to be filed before