A. ANDISAMY CHETTIAR Vs. A. SUBBURAJ CHETTIAR

Tags Civil Procedure

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 14055 of 2015, Judgment Date: Dec 08, 2015

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 14055 OF 2015
(Arising out of S.L.P. (C) No. 7798 of 2015)

Andisamy Chettiar … Appellant

Versus

Subburaj Chettiar …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against order dated 07.11.2014, passed by the
High Court of Judicature at Madras, Bench Madurai, in Civil Revision
Petition (PD) (MD) No. 1787 of 2008 whereby the revision was allowed, and
order dated 12.03.2008 passed by Subordinate Judge, Virudhunagar, on I.A.
No. 3 of 2008 (in A.S. No. 55 of 2007), is set aside.

We have heard learned counsel for the parties and perused the papers on
record.

Succinctly stated, facts of this case are that the appellant/plaintiff
instituted Original Suit No. 92 of 2003 before District Munsif,
Virudhunagar, for permanent injunction restraining the defendant from
interfering in his peaceful possession and enjoyment of the property in
suit. It is pleaded in the plaint that originally the property in dispute
was owned by one Gopalsamy Pillai. On 21.08.1963 Gopalsamy Pillai
transferred the property by executing a sale deed in favour of one
Lakshmiammal. Lakshmiammal further transferred the property to Gurusamy
Naicker through deed dated 26.12.1968. Plaintiff’s father Ayyappan
Chettiar purchased the property from Gurusamy Naicker, and constructed his
house. It is further pleaded that Ayyappan Chettiar executed Will dated
13.12.1990 in favour of the plaintiff, and after death of his father in
1997, the plaintiff is in exclusive possession of the property. Alleging
that the defendant has no right over the disputed property, relief of
permanent injunction against him is sought in the suit. Plaintiff Andisamy
Chettiar and defendant Subburaj Chettiar are sons of Ayyappan Chettiar.

The defendant filed his written statement and contested the suit. It is
not disputed in the written statement that Ayyappan Chettiar, who purchased
the property from Gurusamy Naicker, died on 12.10.1997. However, it is
disputed that Ayyappan Chettiar executed Will dated 13.12.1990, relied by
the plaintiff. It is alleged by the defendant that the plaintiff has filed
suit for permanent injunction only to evade partition of the property. It
is also pleaded by the defendant that apart from two sons, Ayyappan
Chettiar had three daughters, namely, Lakshmi, Avudaithai and Andal.
Lakshmi and Andal died intestate leaving legal heirs, as such, suit is bad
for non-joinder of remaining daughter of Ayyappan Chettiar and legal heirs
of pre-deceased daughters.

On the basis of pleadings of the parties following issues were framed by
the trial court: -

Whether Ayyappan Chettiar executed a Will in favour of the plaintiff in
respect of the property in suit?

Whether the plaintiff is entitled to the relief of permanent injunction?

To what other relief, if any, the plaintiff is entitled?

The plaintiff got examined himself as PW-1 Andisamy Chettiar and he also
got examined PW-2 Selvarajan, stated to be attesting witness of the Will.
Nine documents (including Will Ex.A-4) were filed by the plaintiff. On
behalf of the defendant, he got himself examined as DW-1 Subburaj Chettiar,
and filed three documents. The trial court, after hearing the parties,
decided issue No. 1 against the plaintiff holding that the plaintiff failed
to prove that Ayyappan Chettiar executed the Will relied on by him. On the
basis of finding on issue No. 1, issue Nos. 2 and 3 are also decided in
favour of the defendant, and the suit was dismissed vide judgment and order
dated 05.02.2007.

Aggrieved by the decree passed by the trial court, the plaintiff filed
appeal (A.S. No. 55 of 2007) before the first appellate court, i.e.
Subordinate Judge, Virudhunagar.

During the pendency of A.S. No. 55 of 2007 before the first appellate
court, an application (I.A. No. 3 of 2008) was moved on behalf of the
plaintiff with following prayer: -

“Therefore it is just and necessary that this Hon’ble Court be graciously
pleased to direct a scientific investigation to find out whether the
signature of Ayyappan Chettiar, my father in Ex. A-4 is genuine by
comparing the signature of Ayyappan Chettiar, in Ex. A-4 with his admitted
signatures in Ex. B-1 to B-3, by a competent hand-writing expert, and
further direct him to file a report to the scientific investigation done by
him and justice thus rendered.”

The first appellate court, vide order dated 12.03.2008, allowed the I.A.
No. 3 of 2008, and directed the appellant to deposit a sum of Rs.5000/- as
fee.

The defendant challenged the order passed by the first appellate court,
allowing the application for additional evidence, before the High Court in
Civil Revision Petition (PD) (MD) No. 1787 of 2008, which is allowed by
said court by the impugned order assailed before us.

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 –

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

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)

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 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.

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…...”

In North Eastern Railway Admn. v. Bhagwan Das[2], 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 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…..…”

In N. Kamalam (dead) and another v. Ayyasamy and another[3], 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.”

In Union of India v. Ibrahim Uddin and another[4], 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 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…………..”

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.

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 another[5], 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 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.”

In Gurdev Singh and others v. Mehnga Ram and another[6], this Court, on
similar issue, has expressed the view as under: -

“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 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.”

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.

………………….....…………J.
[Dipak Misra]

.………………….……………J.
[Prafulla C. Pant]
New Delhi;
December 08, 2015.
-----------------------
[1] (2007) 14 SCC 257
[2] (2008) 8 SCC 511
[3] (2001) 7 SCC 503
[4] (2012) 8 SCC 148
[5] (2001) 1 SCC 309
[6] (1997) 6 SCC 507

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