BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 16/05/2007 Coram: The Honourable Mr. Justice V. DHANAPALAN S.A. No.335 of 1995 1.Muthuswamy Goundar 2.Chellammal 3.M. Murugaswamy .. Appellants vs. Ramaswamy Goundar .. Respondent Second Appeal preferred under Section 100 of Civil Procedure Code against the judgment and decree dated 07.11.1994 made in A.S. No.77 of 1993 on the file of the Court of the Principal Subordinate Judge, Dindigul, preferred against the judgment and decree dated 26.06.1991 made in O.S. No.53 of 1986 on the file of the District Munsif Court, Palani. !For appellants ... Mr. T.M. Hariharan for Mr. S. Narayanan ^For respondent ... Mr. K. Srinivasan :JUDGMENT
The defendants in O.S. No.53 of 1986 are the appellants herein. The suit
was filed by the respondent/plaintiff for declaration of title and permanent
injunction in respect of the land in Survey No.1008/1B5 covering an extent of
84 cents.
2. The case of the plaintiff, in brief, is as follows;
The suit property and some other properties originally belonged to the
plaintiff and his brother Kumarasamy and they lost the same in a Court auction
in O.S. No.119 of 1953 and one Karuppanna Gounder purchased the same covering an
extent of 1.57 acres under Ex.A.1, Sale Certificate dated 20.01.1960 and in
turn, sold the same to the plaintiff and his brother’s son Rathinasamy and as
such, both of them became entitled to half share each and five years prior to
the filing of the original suit, they divided the property into 84 cents and 73
cents respectively (totally 1.57 acres) between them. The appellants/defendants
are disturbing the possession of the respondent/plaintiff and hence, the suit.
3. The appellants/defendants filed a written statement contending that
Karuppanna Gounder, the auction purchaser purchased only an undivided share of
1.57 acres out of 25.05 acres under Patta No.45 and no document was marked by
the respondent/plaintiff to prove the delivery of possession of the suit
property to the said Karuppanna Gounder. It was also their contention that
there was no reference of the suit survey no. either in the Sale Certificate
issued by the court or in the sale deed in favour of the respondent/plaintiff
and as such, the suit property was not purchased by Karuppanna Gounder. Their
further contention was that the third appellant had already filed a suit in O.S.
No.727 of 1984 against the brother of the respondent/plaintiff and his wife
Meenakshi Ammal for declaration and injunction in respect of S. No.1008/1B5 and
got the suit decreed and thus, neither the respondent’s brother nor his wife had
right over the suit property and as such, the sale from a person without title
is not a valid one.
4. The Trial Court, on examination of the oral and documentary
evidence, held that in the absence of specific mention of the suit survey no. in
Ex.A.3, chitta extract and Ex.A.4, kist receipt given to Patta No.45, the mere
existence of the name of the respondent/plaintiff is not sufficient to prove
that the suit property belongs to the respondent/plaintiff. Holding further
that the respondent/plaintiff had not proved as to how the suit property was
acquired by him, the Trial Judge dismissed the suit.
5. On the appeal preferred by the respondent/plaintiff, the lower
appellate court, by accepting an additional evidence, namely Ex.A.5, sale deed
executed in favour of the respondent/plaintiff’s brother by the one
Rathinamoorthy Gounder, the father of the first appellant, held that the suit
property and other properties originally belonged to Rathinamoorthy Gounder, who
sold it under Ex.A.5 to the respondent/plaintiff. Further, since the sale was
effected through court under Ex.A.1, the lower appellate court accepted the
title of the auction purchaser and came to the conclusion that the properties
covered under Ex.A.5 and A.1 are one and the same and reversed the judgment of
the Trial Court and decreed the suit against which, the defendants in the suit
have preferred this Second Appeal.
6. This Second Appeal has been admitted on the following substantial
question of law:
“Whether the plaintiff is entitled to ask for declaration and injunction
when the sale deed in favour of his predecessor-in-title is only for an
undivided share and whether the relief sought for is maintainable without
impleading the other sharers?
7. Heard Mr. T.M. Hariharan, learned counsel for the
appellants/defendants and Mr. K. Srinivasan, learned counsel for the
respondent/plaintiff.
8. Mr. Hariharan, learned counsel appearing for the appellants has
contended that the lower appellate court has erred in allowing the respondent to
produce an additional evidence separately, contravening the well-settled legal
position that the application to produce additional evidence has to be heard
along with the appeal and not separately. In support of this contention, he has
relied on a judgment of this Court reported in 1998 (1) CTC 483 in the case of
M. Shanmughasundaram vs. N.T.P. Subburaya Chettiar (para 2) and in the said
case, the case reported in 1994 (2) LW 376 has been relied on and the relevant
paragraph reads as under;
“It is settled position of law that an application filed in the appeal for
permission to adduce additional evidence has to be considered along with the
main appeal and not separately. The Privy Council has considered this question
in Kessowji vs. G.I.P. Railway, L.R. 34 I.A. 115. . . and has again reiterated
the same view in Parsotim vs. Lal Mohan L.R. 58 I.A. 254. . . The Supreme Court
in Arjun Singh vs. Kartar Singh, AIR 1951 SC 193…, after referring to the
aforesaid decisions, has held that without examination of the evidence on record
and without a decision is reached that the evidence as it stood disclosed, a
lacuna which the Court require to be filled up for pronouncing its judgment, the
appellate court would not be justified in admitting the additional evidence
under O.41, Rule 27, CPC.”
9. On the same contention, he has relied on yet another judgment of
this Court reported in 2005 (3) CTC 292 in the case of Pappayammal vs.
Palanisamy & Others (para 16) wherein it has been held as under:
“Admittedly, there is no averment in the plaint about the stand now taken,
on the basis of these additional documents. It is a settled law, that it is not
open to any party, at the stage of appeal, to make fresh allegations and call
upon the other side to admit or deny the same. Any such attempt is contrary to
the requirement of Order 41, Rule 27, CPC. Additional evidence cannot be
permitted in the appellate stage, in order to enable another party to remove
certain lacunae present in that case. That principle has to be applied in
dealing with the petition of additional evidence, when the appellate Court is
unable to pronounce the judgment on the materials before it, without taking into
consideration the additional evidence, sought to be adduced by the plaintiff.
If this principle is applied to the present facts of the case, it is obvious
that the four documents, referred to in the petition, sought to be produced as
additional evidence, cannot be said to be more relevant for the issue to be
decided and it can very well be said that this Court is able to pronounce the
judgment on the basis of the materials placed before the Trial Court, without
taking into consideration, the documents 1 to 4 sought to be admitted as
additional evidence.”
10. The judgment of this Court reported in 2001 (4) CTC 624 in the
matter of Kumarasamy Mudaliar vs. Kuttiappa Mudaliar is also cited by the
counsel for the appellants in support of his contention that the application for
adducing additional evidence has to be disposed of along with the main appeal
and the relevant paragraph reads as under:
“Learned counsel for the appellant relied on the decision in Ayyaswami ,
M. and another v. S.P. Ganesan, 1994 (2) LW 376 for the proposition that “the
appellant had already filed an application under Order 41,Rule 27, CPC before
the lower appellate court for adducing additional evidence, but the appellate
court before passing any order on the application, had disposed of the appeal
itself. It is a well settled position of law that an application filed in the
appeal for permission to adduce additional evidence has to be considered along
with the main appeal and not separately.” There is no dispute about this
principle. Reliance is also placed upon another decision in Devaraja In Re, 1955
M.W.N. 435 relating to the issue of non-reply to the notice and it has no
application to the case on hand.”
11. It is the further contention of the counsel for the appellants that
as per proviso to Section 100(5) of the Civil Procedure Code, a fresh
substantial question of law, if it is deemed to be necessary for the disposal of
the case, can be formulated though it was omitted to be formulated at the time
of admission and the same can be heard and accordingly, the appeal decided. To
strengthen his argument in this regard, he has relied on a judgment of the
Supreme Court reported in 2004 (5) CTC 683 in the case of Sabitri Chatterjee vs.
Debi Das Roy (para 6)
“The submission urged on behalf of the appellant before us is that there
was really no question of law which arose for consideration of the High Court.
The finding of fact recorded by the appellate court as regards the bona fide
personal need of the appellant was supported by evidence on record and
therefore, there was no justification for the High Court to set aside that
finding. In any event, it was submitted, there was no justification for an
amendment of the pleadings and recording of further evidence in view of the fact
that the matters sought to be brought on record by way of amendment and
additional evidence were already before the Court and what was described as
future developments were facts within the knowledge of the parties. We need not
refer to the merit of the submissions urged before us by learned counsel for the
appellant. However, we notice that the High Court before disposing of the
Second appeal did not frame the substantial question of law as required by
Section 100 of Code of Civil Procedure. Sub-section 4 of Section 100, CPC
mandates that where the High Court is satisfied that a substantial question of
law is involved in any case, it shall formulate that question. The appeal shall
then be heard on the question so formulated leaving it open to the respondent to
argue that the case does not involve such question. No doubt, the proviso to
Section 100, CPC does not take away the power of the Court to hear, for reasons
to be recorded, the appeal on any other substantial question of law not
formulated by it, if it is satisfied that the case involves such question. In
the instant case, the learned Judge has not formulated any question of law which
requires determination under Section 100, CPC. This Court, in series of
decisions, has insisted upon compliance with the mandatory requirement of sub-
section 4 of Section 100, CPC.”
12. On his above contention, he has placed further reliance on a
judgment of the Supreme Court reported in 2005 (4) CTC 573 in the case of Phool
Pata and another vs. Vishwanath Singh & others: (paras 8 & 9)
“As a bare perusal of the provision shows, nothing in sub-section (5)
takes away or abridges power of the High Court to hear for reasons to be
recorded, the appeal on any other substantial question, not formulated earlier,
if it is satisfied that the case involves such question.
In the instant case, the only question that was formulated has been quoted
above. Undisputedly, there was no other question formulated regarding the
findings of the appellate court on the readiness and willingness to aspect. In
terms of sub-section (5), the High Court could have heard the appeal on a
question not formulated if for reasons to be recorded if it was of the view that
the case involves such question. In the instant case, no such reason has been
recorded. The memorandum of appeal filed before the High Court also does not
indicate that any specific question was formulated in that regard.”
13. The Supreme Court judgment reported in the case of 1999 (II) CTC 468
in the case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar is also on the
same lines and the relevant para reads as under: (para 3)
“After the amendment, a second appeal can be filed only if a substantial
question of law is involved in the case. The memorandum of appeal must
precisely state the substantial question of law involved and the High Court is
obliged to satisfy itself regarding the existence of such question. If
satisfied, the High Court has to formulate the substantial question of law
involved in the case. The appeal is required to be heard on the question so
formulated. However, the respondent at the time of the hearing of the appeal,
has a right to argue that the case in the court did not involve any substantial
question of law. The proviso to the Section acknowledges the powers of the High
Court to hear the appeal on a substantial point of law, though not formulated by
it with the object of ensuring that no injustice is done to the litigant where
such question was not formulated at the time of admission either by mistake or
by inadvertence.”
14. It is also the further contention of the counsel for the appellants
that the lower appellate court, having decided to receive the additional
evidence, ought to have remanded the matter to the trial court for fresh
consideration, rather than decreeing the suit. With regard to the extent of
property conveyed to the respondent’s brother under Ex.A.5, the counsel for the
appellants has contended that only 1.13 acre has been conveyed and the entire
property was not conveyed, as wrongly observed by the lower appellate court and
furthermore, when it is the case of the respondent that he lost an area of 1.57
acres in the court auction sale, the respondent’s brother had purchased only
1.13 acres in Patta No.45 under Ex.A.5 and on this vital ground, the judgment of
the lower appellate court has to be set aside and the suit filed by the
plaintiff dismissed as rightly done by the Trial Court.
15. The counsel for the appellants has further contended that even on
the assumption, without conceding that the respondent is entitled to any right
over the suit property under patta no.45, he should have only filed a suit for
partition against the joint owners of the properties contained in the patta and
as such, a suit for a specific item is not maintainable on the ground that the
co-sharers were not impleaded in the suit.
16. Contending contra, Mr. K. Srinivasan, learned counsel for the
respondent has submitted that the respondent/plaintiff and his brother’s son
became entitled to the suit property on the basis of court auction sale and the
sale certificate marked as Ex.A.1 cannot be disputed and in addition, there is
no evidence on the part of the appellants to dispute the correctness of the same
either by way of any oral or documentary evidence. He has further contended
that the lower appellate court considered the application for marking additional
evidence along with the appeal and not separately as contended by the counsel
for the appellants and hence, it is perfectly justified in accordance with Order
41, Rule 27 of CPC. While contenting that the appellate court can receive
additional evidence under certain circumstances, he has placed reliance on para
14 of the judgment of this Court reported in 2005 (3) CTC 292 in the matter of
Pappayammal vs. Palanisamy & others which has been relied on by the counsel for
the appellants and it reads as under:
“On going through the above provision, it is clear that on three
contingencies, the appellate Court can admit additional evidence in appeal,
viz.,
1. Trial Court refused to admit evidence which ought to have been
admitted;
2. The party, seeking to produce the additional evidence, had no
knowledge of the existence of such additional evidence or could not, after the
exercise of due diligence, be produced by him at the time when the case was
pending before the trial court, and
3. the appellate court requires any document to be produced to enable
it to pronounce the judgment or for any other substantial cause.”
17. It is also the strong argument of the counsel for the respondent
that the contention raised by the counsel for the appellants that the lower
appellate court ought not to have accepted the additional evidence separately
had not been raised either in the grounds of appeal nor had they been framed as
substantial question of law and moreover, if at all, it has to be considered, it
can be done so only with the leave of the Court as contemplated under Order 42
Rule 2 of the CPC and as such, the contentions not framed as substantial
question of law need not be considered.
18. From the findings of the Trial Court, it is seen that the
respondent/plaintiff has claimed title to the suit property only by virtue of
Ex.A.3, chitta extract and Ex.A.4, kist receipt given to Patta No.45. But, from
a perusal of these two exhibits, it is clear that there is no mention of the
survey number of the property in question in those exhibits. Even the
respondent/plaintiff himself has deposed that there are several Survey Nos. in
Patta No.45. Furthermore, Ex.A.1, sale certificate issued by the court also
does not carry any mention of the survey no. of the suit property. When such is
the case, as rightly argued by the counsel for the appellants, these exhibits
alone cannot be of any help to the respondent/plaintiff to claim title to the
property in question. The Trial Court has also found that the
respondent/plaintiff has not at all proved as to how his predecessors-in-title
acquired the suit property nor has he explained as to why Ex.B.1, sale deed in
favour of the first defendant’s father should be disbelieved. Thus, because of
the failure of the respondent/plaintiff to prove his case, the
respondent/plaintiff has to fail and accordingly, the Trial Court has dismissed
the suit.
19. The plaintiff, in the appeal filed by him before the lower appellate
court, has filed an interlocutory application to mark an additional evidence,
viz., Ex.A.5, sale deed in favour of his brother and the lower appellate court
has allowed the said application by accepting the additional evidence as Ex.A.5
and based on the same, has come to the conclusion, that the respondent/plaintiff
‘s brother acquired the suit property by way of Ex.A.5 and decreed the suit.
20. Now, the questions of law which are raised by the counsel for the
appellants are (i) whether the lower appellate court is correct in deciding the
interlocutory application separately as against the legal proposition that an
application for additional evidence should not be considered separately and it
should be dealt with along with the appeal and (ii) whether the lower appellate
court is right in admitting the additional evidence without assigning any reason
for such admission. The decisions of this Court reported in 1998(1) CTC 483
and 2005 (3) CTC 292 which are referred to above stand by the side of the
appellants.
21. In this connection, reference may be made to Order 41, Rule 27 which
reads as follows:
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–
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 court may allow such evidence or document to be produced or witness to
be examined.
2. Wherever the additional evidence is allowed to be produced by an
appellate court, the Court shall record the reason for its admission.
22. In the case on hand, from the materials available on record, it is
seen that the respondent/plaintiff has nowhere explained that he was not able to
produce Ex.A.5 before the Trial Court despite due diligence exercised by him.
Admittedly, the Trial Court has not refused to accept Ex.A.5 and this is clear
from the undisputed fact that it was not produced before the Trial Court.
Further, if the lower appellate court was of the opinion that it could not
pronounce its judgment but for Ex.A.5, sale deed, then, it should have admitted
that additional evidence by recording reasons for such admission as mandated
under Order 41 Rule 27, CPC. In the instant case, it is seen that the lower
appellate court has considered the interlocutory application separately contrary
to the legal proposition that it should not be done so and has also failed to
assign reasons while admitting Ex.A.5. If this additional evidence is a
material document to be taken into consideration to decide the issue, then, the
lower appellate court ought to have remitted the matter to the Trial Court for
the purpose of taking evidence on the same and then to decide the issue afresh
which has not been done. Thus, when the fact remains that Ex.A.5 was not
produced before the Trial Court, I am of the view that the lower appellate court
had gone wrong in reversing the judgment of the Trial Court. In this context,
some useful reference could be made to a judgment of this Court reported in
2003-1-L.W. 221 in the matter of Pushpa Bai Stalin (died) & 3 others vs. Dhaya
Poomkamazh & 3 others ((para 9):
“In this case, the petitioners herein canvassed before the appellate court
that the documents were created after the judgment and decree was passed by the
Trial Court. The details of the documents sought to be produced by the
respondent were also brought to the notice of the appellate court that they were
well after passing the decree. Out of seven documents, one document was marked
as Ex.A.10 before the Trial Court. One document was in no way relevant with the
case. All the other five remaining documents are after the decree was passed.
Unfortunately, the appellate court failed to consider the said factors, but,
mechanically allowed the application which is evident in the impugned order,
nothing is whispered about the relevancy of the documents. Mere repetition of
Rule 27 CPC is not sufficient to allow the application under Order 41 Rule 27
CPC. Moreover, no valid reason is also assigned by the appellate court for
departing from the general rule.”
23. Further reference may also be made to a judgment of this Court
reported in 2005-2-L.W. 442 in the matter of Goundappa Gounder and 2 others vs.
Periammal (died) and 6 others (para 18)
“The provisions of O.41 R.27 C.P.C. 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. In the decision reported in N. Kamalam (dead) and another vs.
Ayyasamy and another (2001 (7) SCC 503 = 2002-1-L.W. 460), the Supreme Court has
held thus:
“. . .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 p the omission in
the Court of appeal – it does not authorise any lacunae or gaps in 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. . .”
The Appellants have also not alleged due diligence in placing the
documents and that some could not be discovered despite search. As held by the
Supreme Court, O. 41, Rule 27, CPC cannot be invoked to patch up the weak
points. Hence, the request of the appellants to receive the additional
documents cannot be considered.”
24. Of course, it is contended by the counsel for the
respondent/plaintiff that no question of law to the effect whether an additional
evidence can be accepted at the appellate stage, has been formulated at the time
of admission and as such, that cannot be a point for discussion at the time of
final hearing. In this regard, it is worth citing proviso to Section 100(5) of
the CPC which does not take away or abridge the power of the Court to hear the
appeal on any other question of law not formulated by it, if it is satisfied
that the case involves such question. In my considered view, this is one such
case where this Court is satisfied that the question of law with regard to
acceptance of additional evidence, though not formulated at the time of
admission, needs to be looked into because of the peculiar circumstances of the
case and this view of mine is supported by the Supreme Court judgments, viz.,
the ones reported in 2004 (5) CTC 683 and 2005 (4) CTC 573 relied on by the
counsel for the appellants.
25. From the above findings, since this Court is of the view that the
lower appellate court, first of all, ought not to have accepted Ex.A.5, the
additional evidence, without giving any reasoning, and since the substantial
question of law which was formulated at the time of admission of this Second
Appeal cannot be decided at this stage as the lower appellate court has accepted
the additional evidence without assigning any reason, by holding that the lower
appellate court had miserably erred in taking up the interlocutory application
separately instead of taking it up along with the appeal and admitted the
additional evidence without assigning any reason, the judgment of the lower
appellate court is set aside and the matter is remitted to the lower appellate
court to decide the issue by recording reasons for its admitting Ex.A.5 as
additional evidence as mandated by Order 41 Rule 27, CPC or in the alternative
to remit the matter to the Trial Court for the purpose of taking evidence on
Ex.A.5 to decide the issue. Since the appeal is of the year 1995, this exercise
shall be done by the lower appellate court within a period of three months from
the date of receipt of a copy of this judgment.
In fine, the appeal has to succeed and accordingly stands allowed with the
aforesaid directions. No costs.
To
1 The Principal Subordinate Judge, Dindigul
2 The District Munsif, Palani