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PUSHPA BAI versus DHAYA POOMKAMAZH

High Court of Madras

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Pushpa bai v. Dhaya Poomkamazh - C.R.P. No.1216 of 2002 [2002] RD-TN 865 (11 November 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 11/11/2002

CORAM

THE HON'BLE MR.JUSTICE A.KULASEKARAN

C.R.P. No.1216 of 2002

and

C.M.P.No.10249 of 2002

1. Pushpa bai

Stalin (died)

2. Selvakumar

3. Jebasingh

4. Robert Singh ..... Petitioners -Vs-

1. Dhaya Poomkamazh

2. Elsi

3. Sugantha Rensal

4. Pugazh @ Anna Sinegapoo Pugazh ..... Respondents Civil Revision Petition against the decreetal order in I.A.No.123 of 2001 in A.S.No.32 of 1996 dated 5.3.2002 on the file of the Sub Court, Padmanabhapuram Camp, Kanyakumari District.

For petitioners: Mr.C.Godwin

For RR 1 and 2 : Mr.N.Rajan

For RR 3 and 4 : No appearance.

:ORDER



Plaintiffs are the petitioners.

2. The suit in O.S.No.761 of 1991 filed for partition was decreed by the Trial Court. The defendants/respondents herein filed A.S.No.32 of 1996 before the Sub Court, Padmanabhapuram. In the said appeal, the respondents filed I.A.No.123 of 2001 under Order 41 Rule 27 and sec.151 CPC praying the appellate court to permit them to produce seven additional documents which was allowed. Aggrieved by the said order, the petitioners/plaintiffs filed the present civil revision petition.

3. Learned counsel Mr.Godwin appearing for the petitioners submits as follows:-

Out of seven documents sought to be filed, gift deed dated 4.3.1985 executed by Nesayyan Nadar in favour of Dhaya Poomkamazh was already filed as Ex.A10 before the Trial Court and the Hypothecation Deed dated 3.9.1979 executed by Jebamony in favour of Anna Sinka Pukazb was not relating to the subject matter of the appeal and the remaining five documents are relating to the period after the disposal of the suit. The Trial Court, without considering the above said facts has mechanically allowed the I.A.

4. Learned counsel Mr.Rajan appearing for respondents 1 and 2 submits as follows:-

Originally the suit was contested by the respondents' father who was very old and ill with the result, he could not produce the said documents. After the demise of their father, they have been prosecuting the appeal and they found that it is absolutely necessary to mark the said documents as additional evidence. The Trial court has rightly allowed the petition.

5. It is admitted fact that out of seven documents the gift deed dated 4.3.1985 was already marked as Ex.A10 before the Trial Court. The hypothecation deed dated 3.9.1979 was not relating to the suit property. The other documents are relating to the period after the disposal of the suit by the Trial Court on 26.8.1993.

6. Order 41 Rule 27 CPC 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 party seeking to adduce additional evidence satisfies the Appellate Court that such evidence notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed, or

(c.) 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." On three contingencies laid down under Rule 27, 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 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; (3) The appellate court requires any document to be produced to enable it to pronounce the judgment or for any other substantial cause.

7. In this case, the documents ordered to be marked by the appellate court are, strictly speaking to be relating to the post decree passed by the Trial Court. It is not open to any of the parties at the stage of appeal to make fresh allegations of facts and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirements of Order 41 Rule 27. Additional evidence cannot be permitted in appellate stage in order to enable one of the parties to remove certain lacuna in presenting their case. The true test to be applied in dealing with the application of additional evidence is whether the appellate court is able to pronoun ce the judgment on the materials before it without taking into consideration the additional evidence sought to be admitted.

8. As a general rule, a court of law in considering the correctness of the judgment of the court below would confine itself to the state of facts at the time such judgment was rendered and will not take note of any facts which may have arisen subsequently. In exceptional cases, the appellate court departs from the general rule especially where, by so doing, it can shorten the litigation and best attain the ends of justice. Its power is subject to the condition that it cannot be exercised so as to disturb the settled or completed transactions or the vested rights which the legislature did not intend to interfere with.

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.A10 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. In the result, the order passed by the appellate court is set aside. The civil revision petition is allowed with costs. However, considering the circumstances of the case, I direct the appellate court to dispose of the appeal within a period of six months from the date of receipt of copy of this order.

Index: Yes

Internet: Yes

ssk.

To

The Sub Court,

Padmanabhapuram Camp,

Kanyakumari District.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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