{"id":11937,"date":"2007-05-16T00:00:00","date_gmt":"2007-05-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/muthuswamy-goundar-vs-ramaswamy-goundar-on-16-may-2007"},"modified":"2017-11-03T16:56:51","modified_gmt":"2017-11-03T11:26:51","slug":"muthuswamy-goundar-vs-ramaswamy-goundar-on-16-may-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/muthuswamy-goundar-vs-ramaswamy-goundar-on-16-may-2007","title":{"rendered":"Muthuswamy Goundar vs Ramaswamy Goundar on 16 May, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
Muthuswamy Goundar vs Ramaswamy Goundar on 16 May, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDated : 16\/05\/2007\n\nCoram:\nThe Honourable Mr. Justice V. DHANAPALAN\n\nS.A. No.335 of 1995\n\n1.Muthuswamy Goundar\n\n2.Chellammal\n\n3.M. Murugaswamy\t\t.. Appellants\n\nvs.\n\nRamaswamy Goundar\t\t.. Respondent\n\n\nSecond Appeal preferred under Section 100 of Civil Procedure Code against the\njudgment and decree dated 07.11.1994 made in A.S. No.77 of 1993 on the file of\nthe Court of the Principal Subordinate Judge, Dindigul, preferred against the\njudgment and decree dated 26.06.1991 made in O.S. No.53 of 1986 on the file of\nthe District Munsif Court, Palani.\n\n\n!For appellants\t\t...\tMr. T.M. Hariharan\n\t\t\t\tfor Mr. S. Narayanan\n\n^For respondent\t\t...\tMr. K. Srinivasan\n\n\n:JUDGMENT\n<\/pre>\n
\tThe defendants in O.S. No.53 of 1986 are the appellants herein.  The suit
\nwas filed by the respondent\/plaintiff for declaration of title and permanent
\ninjunction in respect of the land in Survey No.1008\/1B5  covering an extent of
\n84 cents.\n<\/p>\n
\t2.\tThe case of the plaintiff, in brief, is as follows;\n<\/p>\n
\tThe suit property and some other properties originally belonged to the
\nplaintiff and his brother Kumarasamy and they lost the same in a Court auction
\nin O.S. No.119 of 1953 and one Karuppanna Gounder purchased the same covering an
\nextent of 1.57 acres under Ex.A.1, Sale Certificate dated 20.01.1960 and in
\nturn, sold the same to the plaintiff and his brother’s son Rathinasamy and as
\nsuch, both of them became entitled to half share each and five years prior to
\nthe filing of the original suit, they divided the property into 84 cents and 73
\ncents respectively (totally 1.57 acres) between them. The appellants\/defendants
\nare disturbing the possession of the respondent\/plaintiff and hence, the suit.\n<\/p>\n
\t3.\tThe appellants\/defendants filed a written statement contending that
\nKaruppanna Gounder, the auction purchaser purchased only an undivided share of
\n1.57 acres out of 25.05 acres under Patta No.45 and no document was marked by
\nthe respondent\/plaintiff to prove the delivery of possession of the suit
\nproperty to the said Karuppanna Gounder.  It was also their contention that
\nthere was no reference of the suit survey no. either in the Sale Certificate
\nissued by the court or in the sale deed in favour of the respondent\/plaintiff
\nand as such, the suit property was not purchased by Karuppanna Gounder.  Their
\nfurther contention was that the third appellant had already filed a suit in O.S.
\nNo.727 of 1984 against the brother of the respondent\/plaintiff and his wife
\nMeenakshi Ammal for declaration and injunction in respect of S. No.1008\/1B5 and
\ngot the suit decreed and thus, neither the respondent’s brother nor his wife had
\nright over the suit property and as such, the sale from a person without title
\nis not a valid one.\n<\/p>\n
\t4.\tThe Trial Court, on examination of the oral and documentary
\nevidence, held that in the absence of specific mention of the suit survey no. in
\nEx.A.3, chitta extract and Ex.A.4, kist receipt given to Patta No.45, the mere
\nexistence of the name of the respondent\/plaintiff is not sufficient to prove
\nthat the suit property belongs to the respondent\/plaintiff.  Holding further
\nthat the respondent\/plaintiff had not proved as to how the suit property was
\nacquired by him, the Trial Judge dismissed the suit.\n<\/p>\n
\t5.\tOn the appeal preferred by the respondent\/plaintiff, the lower
\nappellate court, by accepting an additional evidence, namely Ex.A.5, sale deed
\nexecuted in favour of the respondent\/plaintiff’s brother by the one
\nRathinamoorthy Gounder, the father of the first appellant, held that the suit
\nproperty and other properties originally belonged to Rathinamoorthy Gounder, who
\nsold it under Ex.A.5 to the respondent\/plaintiff.  Further, since the sale was
\neffected through court under Ex.A.1,  the lower appellate court accepted the
\ntitle of the auction purchaser and came to the conclusion that the properties
\ncovered under Ex.A.5 and A.1 are one and the same and reversed the judgment of
\nthe Trial Court and decreed the suit against which, the defendants in the suit
\nhave preferred this Second Appeal.\n<\/p>\n
\t6.\tThis Second Appeal has been admitted on the following substantial
\nquestion of law:\n<\/p>\n
\t“Whether the plaintiff is entitled to ask for declaration and injunction
\nwhen the sale deed in favour of his predecessor-in-title is only for an
\nundivided share and whether the relief sought for is maintainable without
\nimpleading the other sharers?\n<\/p>\n
\t7.\tHeard Mr. T.M. Hariharan, learned counsel for the
\nappellants\/defendants and Mr. K. Srinivasan, learned counsel for the
\nrespondent\/plaintiff.\n<\/p>\n
\t8.\tMr. Hariharan, learned counsel appearing for the appellants has
\ncontended that the lower appellate court has erred in allowing the respondent to
\nproduce an additional evidence separately, contravening the well-settled legal
\nposition that the application to produce additional evidence has to be heard
\nalong with the appeal and not separately.  In support of this contention, he has
\nrelied on a judgment of this Court reported in 1998 (1) CTC 483 in the case of
\nM. Shanmughasundaram vs. N.T.P. Subburaya Chettiar<\/a> (para 2) and in the said
\ncase, the case reported in 1994 (2) LW 376 has been relied on and the relevant
\nparagraph reads as under;\n<\/p>\n
\t“It is settled position of law that an application filed in the appeal for
\npermission to adduce additional evidence has to be considered along with the
\nmain appeal and not separately.  The Privy Council has considered this question
\nin Kessowji vs. G.I.P. Railway, L.R. 34 I.A. 115. . . and has again reiterated
\nthe same view in Parsotim vs. Lal Mohan L.R. 58 I.A. 254. . .  The Supreme Court
\nin Arjun Singh vs. Kartar Singh, AIR<\/a> 1951 SC 193…, after referring to the
\naforesaid decisions, has held that without examination of the evidence on record
\nand without a decision is reached that the evidence as it stood disclosed, a
\nlacuna which the Court require to be filled up for pronouncing its judgment, the
\nappellate court would not be justified in admitting the additional evidence
\nunder O.41, Rule 27, CPC.”\n<\/p>\n
\t9.\tOn the same contention, he has relied on yet another judgment of
\nthis Court reported in 2005 (3) CTC 292 in the case of Pappayammal vs.
\nPalanisamy & Others<\/a> (para 16) wherein it has been held as under:
\n\t“Admittedly, there is no averment in the plaint about the stand now taken,
\non the basis of these additional documents.  It is a settled law, that it is not
\nopen to any party, at the stage of appeal, to make fresh allegations and call
\nupon the other side to admit or deny the same.  Any such attempt is contrary to
\nthe requirement of Order 41, Rule 27, CPC.  Additional evidence cannot be
\npermitted in the appellate stage, in order to enable another party to remove
\ncertain lacunae present in that case.  That principle has to be applied in
\ndealing with the petition of additional evidence, when the appellate Court is
\nunable to pronounce the judgment on the materials before it, without taking into
\nconsideration the additional evidence, sought to be adduced by the plaintiff.
\nIf this principle is applied to the present facts of the case, it is obvious
\nthat the four documents, referred to in the petition, sought to be produced as
\nadditional evidence, cannot be said to be more relevant for the issue to be
\ndecided and it can very well be said that this Court is able to pronounce the
\njudgment on the basis of the materials placed before the Trial Court, without
\ntaking into consideration, the documents 1 to 4 sought to be admitted as
\nadditional evidence.”\n<\/p>\n
\t10.\tThe judgment of this Court reported in 2001 (4) CTC 624 in the
\nmatter of Kumarasamy Mudaliar vs. Kuttiappa Mudaliar<\/a> is also cited by the
\ncounsel for the appellants in support of his contention that the application for
\nadducing additional evidence has to be disposed of along with the main appeal
\nand the relevant paragraph reads as under:\n<\/p>\n
\t“Learned counsel for the appellant relied on the decision in Ayyaswami ,
\nM. and another v. S.P. Ganesan, 1994 (2) LW 376 for the proposition that “the
\nappellant had already filed an application under Order 41,Rule 27, CPC before
\nthe lower appellate court for adducing additional evidence, but the appellate
\ncourt before passing any order on the application, had disposed of the appeal
\nitself.  It is a well settled position of law that an application filed in the
\nappeal for permission to adduce additional evidence has to be considered along
\nwith the main appeal and not separately.”  There is no dispute about this
\nprinciple. Reliance is also placed upon another decision in Devaraja In Re, 1955
\nM.W.N. 435 relating to the issue of non-reply to the notice and it has no
\napplication to the case on hand.”\n<\/p>\n
\t11.\tIt is the further contention of the counsel for the appellants that
\nas per proviso to Section 100(5) of the Civil Procedure Code, a fresh
\nsubstantial question of law, if it is deemed to be necessary for the disposal of
\nthe case, can be formulated though it was omitted to be formulated at the time
\nof admission and the same can be heard and accordingly, the appeal decided.  To
\nstrengthen his argument in this regard, he has relied on a judgment of the
\nSupreme Court reported in 2004 (5) CTC 683 in the case of Sabitri Chatterjee vs.
\nDebi Das Roy<\/a> (para 6)<\/p>\n
\t“The submission urged on behalf of the appellant before us is that there
\nwas really no question of law which arose for consideration of the High Court.
\nThe finding of fact recorded by the appellate court as regards the bona fide
\npersonal need of the appellant was supported by evidence on record and
\ntherefore, there was no justification for the High Court to set aside that
\nfinding.  In any event, it was submitted, there was no justification for an
\namendment of the pleadings and recording of further evidence in view of the fact
\nthat the matters sought to be brought on record by way of amendment and
\nadditional evidence were already before the Court and what was described as
\nfuture developments were facts within the knowledge of the parties.  We need not
\nrefer to the merit of the submissions urged before us by learned counsel for the
\nappellant.  However, we notice that the High Court before disposing of the
\nSecond appeal did not frame the substantial question of law as required by
\nSection 100 of Code of Civil Procedure.  Sub-section 4 of Section 100, CPC
\nmandates that where the High Court is satisfied that a substantial question of
\nlaw is involved in any case, it shall formulate that question.  The appeal shall
\nthen be heard on the question so formulated leaving it open to the respondent to
\nargue that the case does not involve such question.  No doubt, the proviso to
\nSection 100, CPC does not take away the power of the Court to hear, for reasons
\nto be recorded, the appeal on any other substantial question of law not
\nformulated by it, if it is satisfied that the case involves such question.  In
\nthe instant case, the learned Judge has not formulated any question of law which
\nrequires determination under Section 100, CPC.  This Court, in series of
\ndecisions, has insisted upon compliance with the mandatory requirement of sub-
\nsection 4 of Section 100, CPC.”\n<\/p>\n
\t12.\tOn his above contention, he has placed further reliance on a
\njudgment of the Supreme Court reported in 2005 (4) CTC 573 in the case of Phool
\nPata and another vs. Vishwanath Singh & others: (paras 8 & 9)<\/p>\n
\t“As a bare perusal of the provision shows, nothing in sub-section (5)
\ntakes away or abridges power of the High Court to hear for reasons to be
\nrecorded, the appeal on any other substantial question, not formulated earlier,
\nif it is satisfied that the case involves such question.\n<\/p>\n
\tIn the instant case, the only question that was formulated has been quoted
\nabove. Undisputedly, there was no other question formulated regarding the
\nfindings of the appellate court on the readiness and willingness to aspect.  In
\nterms of sub-section (5), the High Court could have heard the appeal on a
\nquestion not formulated if for reasons to be recorded if it was of the view that
\nthe case involves such question.  In the instant case, no such reason has been
\nrecorded. The memorandum of appeal filed before the High Court also does not
\nindicate that any specific question was formulated in that regard.”\n<\/p>\n
\t13.\tThe Supreme Court judgment reported in the case of 1999 (II) CTC 468
\nin the case of Kondiba Dagadu Kadam vs. Savitribai Sopan Gujar<\/a> is also on the
\nsame lines and the relevant para reads as under: (para 3)<\/p>\n
\t“After the amendment, a second appeal can be filed only if a substantial
\nquestion of law is involved in the case.  The memorandum of appeal must
\nprecisely state the substantial question of law involved and the High Court is
\nobliged to satisfy itself regarding the existence of such question.  If
\nsatisfied, the High Court has to formulate the substantial question of law
\ninvolved in the case.  The appeal is required to be heard on the question so
\nformulated.  However, the respondent at the time of the hearing of the appeal,
\nhas a right to argue that the case in the court did not involve any substantial
\nquestion of law. The proviso to the Section acknowledges the powers of the High
\nCourt to hear the appeal on a substantial point of law, though not formulated by
\nit with the object of ensuring that no injustice is done to the litigant where
\nsuch question was not formulated at the time of admission either by mistake or
\nby inadvertence.”\n<\/p>\n
\t14.\tIt is also the further contention of the counsel for the appellants
\nthat the lower appellate court, having decided to receive the additional
\nevidence, ought to have remanded the matter to the trial court for fresh
\nconsideration, rather than decreeing the suit.  With regard to the extent of
\nproperty conveyed to the respondent’s brother under Ex.A.5, the counsel for the
\nappellants has contended that only 1.13 acre has been conveyed and the entire
\nproperty was not conveyed, as wrongly observed by the lower appellate court and
\nfurthermore, when it is the case of the respondent that he lost an area of 1.57
\nacres in the court auction sale, the respondent’s brother had purchased only
\n1.13 acres in Patta No.45 under Ex.A.5 and on this vital ground, the judgment of
\nthe lower appellate court has to be set aside and the suit filed by the
\nplaintiff dismissed as rightly done by the Trial Court.\n<\/p>\n
\t15.\tThe counsel for the appellants has further contended that even on
\nthe assumption, without conceding that the respondent is entitled to any right
\nover the suit property under patta no.45, he should have only filed a suit for
\npartition against the joint owners of the properties contained in the patta and
\nas such, a suit for a specific item is not maintainable on the ground that the
\nco-sharers were not impleaded in the suit.\n<\/p>\n
\t16.\tContending contra, Mr. K. Srinivasan, learned counsel for the
\nrespondent has submitted that the respondent\/plaintiff and his brother’s son
\nbecame entitled to the suit property on the basis of court auction sale and the
\nsale certificate marked as Ex.A.1 cannot be disputed and in addition, there is
\nno evidence on the part of the appellants to dispute the correctness of the same
\neither by way of any oral or documentary evidence.  He has further contended
\nthat the lower appellate court considered the application for marking additional
\nevidence along with the appeal and not separately as contended by the counsel
\nfor the appellants and hence, it is perfectly justified in accordance with Order
\n41, Rule 27 of CPC.  While contenting that the appellate court can receive
\nadditional evidence under certain circumstances, he has placed reliance on para
\n14 of the judgment of this Court reported in 2005 (3) CTC 292 in the matter of
\nPappayammal vs. Palanisamy & others<\/a> which has been relied on by the counsel for
\nthe appellants and it reads as under:\n<\/p>\n
\t“On going through the above provision, it is clear that on three
\ncontingencies, the appellate Court can admit additional evidence in appeal,
\nviz.,<\/p>\n
\t1.\tTrial Court refused to admit evidence which ought to have been
\nadmitted;\n<\/p>\n
\t2.\tThe party, seeking to produce the additional evidence, had no
\nknowledge of the existence of such additional evidence or could not, after the
\nexercise of due diligence, be produced by him at the time when the case was
\npending before the trial court, and<\/p>\n
\t3.\tthe appellate court requires any document to be produced to enable
\nit to pronounce the judgment or for any other substantial cause.”\n<\/p>\n
\t17.\tIt is also the strong argument of the counsel for the respondent
\nthat the contention raised by the counsel for the appellants that the lower
\nappellate court ought not to have accepted the additional evidence separately
\nhad not been raised either in the grounds of appeal nor had they been framed as
\nsubstantial question of law and moreover, if at all, it has to be considered, it
\ncan be done so only with the leave of the Court as contemplated under Order 42
\nRule 2 of the CPC and as such, the contentions not framed as substantial
\nquestion of law need not be considered.\n<\/p>\n
\t18.\tFrom the findings of the Trial Court, it is seen that the
\nrespondent\/plaintiff has claimed title to the suit property only by virtue of
\nEx.A.3, chitta extract and Ex.A.4, kist receipt given to Patta No.45.  But, from
\na perusal of these two exhibits, it is clear that there is no mention of the
\nsurvey number of the property in question in those exhibits.  Even the
\nrespondent\/plaintiff himself has deposed that there are several Survey Nos. in
\nPatta No.45.  Furthermore, Ex.A.1, sale certificate issued by the court also
\ndoes not carry any mention of the survey no. of the suit property. When such is
\nthe case, as rightly argued by the counsel for the appellants, these exhibits
\nalone cannot be of any help to the respondent\/plaintiff to claim title to the
\nproperty in question. The Trial Court has also found that the
\nrespondent\/plaintiff has not at all proved as to how his predecessors-in-title
\nacquired the suit property nor has he explained as to why Ex.B.1, sale deed in
\nfavour of the first defendant’s father should be disbelieved. Thus, because of
\nthe failure of the respondent\/plaintiff to prove his case, the
\nrespondent\/plaintiff has to fail and accordingly, the Trial Court has dismissed
\nthe suit.\n<\/p>\n
\t19.\tThe plaintiff, in the appeal filed by him before the lower appellate
\ncourt, has filed an interlocutory application to mark an additional evidence,
\nviz., Ex.A.5, sale deed in favour of his brother and the lower appellate court
\nhas allowed the said application by accepting the additional evidence as Ex.A.5
\nand based on the same, has come to the conclusion, that the respondent\/plaintiff
\n‘s brother acquired the suit property by way of Ex.A.5 and decreed the suit.\n<\/p>\n
\t20.\tNow, the questions of law which are raised by the counsel for the
\nappellants are (i) whether the lower appellate court is correct in deciding the
\ninterlocutory application separately as against the legal proposition that an
\napplication for additional evidence should not be considered separately and it
\nshould be dealt with along with the appeal and (ii) whether the lower appellate
\ncourt is right in admitting the additional evidence without assigning any reason
\nfor such admission.  The decisions of this Court reported in  1998(1) CTC 483
\nand 2005 (3) CTC 292 which are referred to above stand by the side of the
\nappellants.\n<\/p>\n
\t21.\tIn this connection, reference may be made to Order 41, Rule 27 which
\nreads as follows:\n<\/p>\n
Production of additional evidence in appellate court<\/p>\n
\t1.\tThe parties to an appeal shall not be entitled to produce additional
\nevidence, whether oral or documentary, in the appellate court. But if–\n<\/p>\n
\ta.\tthe court from whose decree the appeal is preferred has refused to
\nadmit evidence which ought to have been admitted, or<\/p>\n
\t[(aa)\tthe party seeking to produce additional evidence, establishes that
\nnotwithstanding the exercise of due diligence, such evidence was not within his
\nknowledge or could not, after the exercise of due diligence, be produced by him
\nat the time when the decree appealed against was passed, or]<\/p>\n
\tb.\tthe appellate court requires any document to be produced or any
\nwitness to be examined to enable it to pronounce judgment, or for any other
\nsubstantial cause,<\/p>\n
\tthe court may allow such evidence or document to be produced or witness to
\nbe examined.\n<\/p>\n
\t2.\tWherever the additional evidence is allowed to be produced by an
\nappellate court, the Court shall record the reason for its admission.\n<\/p>\n
\t22.\tIn the case on hand, from the materials available on record, it is
\nseen that the respondent\/plaintiff has nowhere explained that he was not able to
\nproduce Ex.A.5 before the Trial Court despite due diligence exercised by him.
\nAdmittedly, the Trial Court has not refused to accept Ex.A.5 and this is clear
\nfrom the undisputed fact that it was not produced before the Trial Court.
\nFurther, if the lower appellate court was of the opinion that it could not
\npronounce its judgment but for Ex.A.5, sale deed, then, it should have admitted
\nthat additional evidence by recording reasons for such admission as mandated
\nunder Order 41 Rule 27, CPC.  In the instant case, it is seen that the lower
\nappellate court has considered the interlocutory application separately contrary
\nto the legal proposition that it should not be done so and has also failed to
\nassign reasons while admitting Ex.A.5.  If this additional evidence is a
\nmaterial document to be taken into consideration to decide the issue, then, the
\nlower appellate court ought to have remitted the matter to the Trial Court for
\nthe purpose of taking evidence on the same and then to decide the issue afresh
\nwhich has not been done.   Thus, when the fact remains that Ex.A.5 was not
\nproduced before the Trial Court, I am of the view that the lower appellate court
\nhad gone wrong in reversing the judgment of the Trial Court.  In this context,
\nsome useful reference could be made to a judgment of this Court reported in
\n2003-1-L.W. 221 in the matter of Pushpa Bai Stalin (died) & 3 others vs. Dhaya
\nPoomkamazh & 3 others ((para 9):\n<\/p>\n
\t“In this case, the petitioners herein canvassed before the appellate court
\nthat the documents were created after the judgment and decree was passed by the
\nTrial Court.  The details of the documents sought to be produced by the
\nrespondent were also brought to the notice of the appellate court that they were
\nwell after passing the decree.  Out of seven documents, one document was marked
\nas Ex.A.10 before the Trial Court.  One document was in no way relevant with the
\ncase.  All the other five remaining documents are after the decree was passed.
\nUnfortunately, the appellate court failed to consider the said factors, but,
\nmechanically allowed the application which is evident in the impugned order,
\nnothing is whispered about the relevancy of the documents.  Mere repetition of
\nRule 27 CPC is not sufficient to allow the application under Order 41 Rule 27
\nCPC.  Moreover, no valid reason is also assigned by the appellate court for
\ndeparting from the general rule.”\n<\/p>\n
\t23.\tFurther reference may also be made to a judgment of this Court
\nreported in 2005-2-L.W. 442 in the matter of Goundappa Gounder and 2 others vs.
\nPeriammal (died) and 6 others  (para 18)
\n\t“The provisions of O.41 R.27 C.P.C. have not been engrafted in the Code so
\nas to patch up the weak points in the case and to fill up the omission in the
\nCourt of Appeal.  In the decision reported in N. Kamalam (dead) and another vs.
\nAyyasamy and another (2001 (7) SCC 503 = 2002-1-L.W. 460), the Supreme Court has
\nheld thus:\n<\/p>\n
\t“. . .The provisions of Order 41 Rule 27 have not been engrafted in the
\nCode so as to patch up the weak points in the case and to fill p the omission in
\nthe Court of appeal – it does not authorise any lacunae or gaps in evidence to
\nbe filled up. The authority and jurisdiction as conferred on to the appellate
\ncourt to let in fresh evidence is restricted to the purpose of pronouncement of
\njudgment in a particular way. . .”\n<\/p>\n
\t\tThe Appellants have also not alleged due diligence in placing the
\ndocuments and that some could not be discovered despite search.  As held by the
\nSupreme Court, O. 41, Rule 27, CPC cannot be invoked to patch up the weak
\npoints.  Hence, the request of the appellants to receive the additional
\ndocuments cannot be considered.”\n<\/p>\n
\t24.\tOf course, it is contended by the counsel for the
\nrespondent\/plaintiff that no question of law to the effect whether an additional
\nevidence can be accepted at the appellate stage, has been formulated at the time
\nof admission and as such, that cannot be a point for discussion at the time of
\nfinal hearing.  In this regard, it is worth citing proviso to Section 100(5) of
\nthe CPC which does not take away or abridge the power of the Court to hear the
\nappeal on any other question of law not formulated by it, if it is satisfied
\nthat the case involves such question.  In my considered view, this is one such
\ncase where this Court is satisfied that the question of law with regard to
\nacceptance of additional evidence, though not formulated at the time of
\nadmission, needs to be looked into because of the peculiar circumstances of the
\ncase and this view of mine is supported by the Supreme Court judgments, viz.,
\nthe ones reported in 2004 (5) CTC 683 and 2005 (4) CTC 573 relied on by the
\ncounsel for the appellants.\n<\/p>\n
\t25.\tFrom the above findings, since this Court is of the view that the
\nlower appellate court, first of all, ought not to have accepted Ex.A.5, the
\nadditional evidence, without giving any reasoning, and since the substantial
\nquestion of law which was formulated at the time of admission of this Second
\nAppeal cannot be decided at this stage as the lower appellate court has accepted
\nthe additional evidence without assigning any reason, by holding that the lower
\nappellate court had miserably erred in taking up the interlocutory application
\nseparately instead of taking it up along with the appeal and admitted the
\nadditional evidence without assigning any reason, the judgment of the lower
\nappellate court is set aside and the matter is remitted to the lower appellate
\ncourt to decide the issue by recording reasons for its admitting Ex.A.5 as
\nadditional evidence as mandated by Order 41 Rule 27, CPC or in the alternative
\nto remit the matter to the Trial Court for the purpose of taking evidence on
\nEx.A.5 to decide the issue. Since the appeal is of the year 1995, this exercise
\nshall be done by the lower appellate court within a period of three months from
\nthe date of receipt of a copy of this judgment.\n<\/p>\n
\tIn fine, the appeal has to succeed and accordingly stands allowed with the
\naforesaid directions.  No costs.\n<\/p>\n
To<\/p>\n
1\tThe Principal Subordinate Judge, Dindigul<\/p>\n
2\tThe District Munsif, Palani<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Muthuswamy Goundar vs Ramaswamy Goundar on 16 May, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-11937","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMuthuswamy Goundar vs Ramaswamy Goundar on 16 May, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/muthuswamy-goundar-vs-ramaswamy-goundar-on-16-may-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Muthuswamy Goundar vs Ramaswamy Goundar on 16 May, 2007 - 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