IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA No. 197 of 2000(F)
1. RAGHAVAN VISWAMBHARAN
... Petitioner
Vs
1. NEELAKANTAN MADHAVAN
... Respondent
For Petitioner :SRI.G.S.REGHUNATH
For Respondent :SRI.R.S.KALKURA
The Hon'ble MR. Justice K.T.SANKARAN
Dated :05/12/2007
O R D E R
K.T.SANKARAN, J.
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S.A.. NO. 197 OF 2000
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Dated this the 5th day of December, 2007
JUDGMENT
On 19.11.2007 an order was passed for posting the Second Appeal
for hearing on the question as to whether the first appeal before the lower
appellate court had abated. Learned counsel appearing for both parties
submitted that this question is not very relevant. The suit was filed for
declaration of title and for injunction. There were three defendants in the
suit. The first defendant, Muthan Nadar Solaman, was exparte in the trial
court. The suit was contested by defendants 2 and 3. The trial court
decreed the suit. Defendants 2 and 3 filed an appeal before the lower
appellate court. The first defendant was the third respondent in the
appeal. He died during pendency of the appeal. Since the third
respondent in the appeal was exparte in the trial court and since he would
be a party benefited in case the appeal was allowed, I do not think that
the question of abatement need be considered as a preliminary point, as
agreed by both the counsel.
2. The appellants are the plaintiffs in O.S.No.208 of 1986, on the
file of the Court of the Principal Munsiff of Neyyattinkara. The suit was
filed for declaration of title and possession of the plaint schedule property
and for permanent prohibitory injunction restraining the defendants from
S.A.NO. 197 OF 2000
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trespassing into the plaint schedule property or taking yield from the
property or from cutting and removing trees or committing waste.
Defendants 2 and 3 contested the suit. The trial court held that the
plaintiffs have established their title and possession over the plaint
schedule property and the suit was decreed.
3. Defendants 2 and 3 filed A.S.No.807 of 1994, on the file of the
Court of the Subordinate Judge of Neyyattinkara, challenging the
judgment and decree of the trial court. The Appellate Court allowed the
appeal, set aside the judgment and decree of the trial court and
dismissed the suit.
4. When the Second Appeal was taken up for hearing, learned
counsel for the respondents/defendants 2 and 3 submitted that though
they succeeded in the appeal before the Appellate Court, the Appellate
Court did not consider several documents produced by them as additional
documents. He submitted that for a proper adjudication of the disputes
involved in the case effectively and finally, it is necessary to consider
those documents as well. Learned counsel for the respondents also
submitted that this Court may accept those documents as additional
evidence and consider the same while disposing of the Second Appeal.
Learned counsel for the appellants submitted that it may not be proper for
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the second appellate court to consider those documents for the first time
and if the Court feels that those documents are also to be looked into,
parties must have an opportunity to adduce evidence. Learned counsel
for the respondents also submitted that evidence may be required in the
case.
5. It is submitted by the learned counsel appearing for both parties
that the lower appellate court has not considered the applications filed by
the respondents herein for receiving additional documents at the
appellate stage and no orders were passed on the merits in those
applications.
6. Instead of considering the questions of law raised in the Second
Appeal, I propose to dispose of the Second Appeal on the following
question of law:
“Was the lower appellate court justified in not passing
any order in the applications filed by the respondents in
the Second Appeal (appellants in the first appeal) to receive
additional evidence under Rule 27 of Order XLI of the Code
of Civil Procedure and whether this has vitiated the
judgment?”7. It is submitted by the counsel for the appellants that if the
questions of law raised in the Second Appeal are considered and decided
after taking note of the additional documents produced by the
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respondents as well, much prejudice would be caused to the appellants,
since the appellants would be denied of an opportunity to adduce
evidence and to cross examine the witnesses touching upon the
additional documents.
8. When an application is filed before the appellate court under
Order XLI Rule 27 of the Code of Civil Procedure, the appellate court is
bound to consider and dispose of the same. If the Court finds that the
party producing the additional documents was prevented for sufficient
cause in not producing those documents before the trial court or that
notwithstanding the exercise of due diligence such evidence was not
within his knowledge and, therefore, he could not produce the same or if
the appellate court finds that such documents are necessary for the
effectual and complete adjudication of the dispute, the documents may be
received in evidence. The court has to consider the application on the
merits and decide whether the discretion is to be exercised to receive the
documents as additional documents in the facts and circumstances of the
case. In the peculiar facts of this case, as pointed out by the counsel on
both sides, it was absolutely necessary for the appellate court to have
considered the question whether the additional documents could be
accepted in evidence or not. Having not done so, I am of the view that
there was no effective and complete disposal of the appeal on the merits.
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For the aforesaid reasons, the judgment and decree passed by the
lower appellate court, are hereby set aside. The lower appellate court
shall dispose of the appeal afresh after passing an order in the
applications filed by the appellants before the lower appellate court
(A.S.No.807 of 1994) to receive additional documents. If the court below
finds that the documents are liable to be accepted as additional evidence,
the appellate court would be free to allow the parties to adduce such other
evidence as is relevant. The lower appellate court shall dispose of the
appeal on the merits as expeditiously as possible. Pending disposal of
the appeal, both parties are restrained from cutting and removing trees
and committing any waste in the plaint schedule property, in view of the
applications filed by them in this Second Appeal for such relief against
each other.
(K.T.SANKARAN)
Judgeahz/
K.T.SANKARAN, J.
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S.A.NO. 197 OF 2000
JUDGMENT
5th December, 2007
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