G. Singaravel Naidu vs S. Govindasamy Mudaliar

K. Sampath, J.—The defendant is the appellant in the second appeal. The respondent filed O.S.No. 60 of 1981 before the District Munsif

of Nagapattinam for a permanent injunction against the appellant.

The case as set out in the plaint was as follows; The suit property which was classified as dry in the revenue records was purchased by the

respondent under Ex.A-1 on 25.6.1973 from one Mangayarkarasi of Sikkal village and he had been in possession of the same by changing the

patta and paying the kist due to the Government. The suit property had been fenced in its North, South and East and a way out to lead to the

respondent''s house portion on the West. There was a way to go to the tank which was on the southern side of the suit property. There were four

coconut trees and bamboo clusters and the respondent recently raised plaintain saplings in the suit property. He was having his house and

backyard just to the west of the suit property. The location of the suit property was shown in a rough sketch appended to the plaint. The appellant

was having his residential house just adjacent to the East of the respondent''s house. In between the houses and backyards of the parties there was

a pucca fence, demarcating the boundaries. The northern fence in the suit property was a dividing line for the backyard of the appellant''s property

and the suit property. In 1978 there was a dispute in respect of the northern fence of the suit property when the appellant resisted the respondent

from effecting repairs of that fence. Thereupon a Panchayat was convened and the mediators obtained Muchalika from both parties and the

appellant had undertaken not to disturb the northern fence of the suit property. The appellant again attempted to remove the northern fence at

about 7 a.m. on 24.2.1981 and also to close the western way to the suit property by putting a bamboo thatty. The respondent resisted those

actions and also complained to the Kivalure police. But the police did not take proper action. Taking advantage of the inaction of the police, the

appellant again attempted to remove the northern fence and close the western way. The suit was therefore necessitated.

The appellant resisted the suit contending inter alia as follows: The respondent had no title nor possession to the suit property. The plaint plan is

misleading. The existence of a cattle shed was not mentioned. The appellant''s house had been shifted and was shown in a wrong place. There was

no description or any identified marks to know which part of the plan was the suit property. The appellant inferred that ABCD might indicate the

suit property. He purchased the property in the year 1980 under Ex.B-2 from one Packirisamy Naidu and another. The property thus purchased

was the house and house site just east of the respondent''s property and both the properties faced north. The western wall of the appellant''s house

purchased by him in the year 1980 was there with a live fence with trees running north to south from the southern phase of the walls western wall

of the appellant''s house. That fence was leading up to the fence owned by a Muslim Gentlemen. So also the southern fence of the respondent''s

house and house site belonged to the same Muslim Gentleman. The respondent purchased a property comprised within the following boundaries,

namely, South of the North street, west of the appellant''s house and the backyard and north of the Muslim Gentleman''s land. This itself amply

proved that the respondent had not purchased the suit property. So without having any title or possession he had no right to file the suit for

permanent injunction. The coconut trees and other plants within the suit property were raised by the appellant. Since the respondent had no access

to go to the tank from his backyard, he had been making a false claim in the appellant''s property. To that end, he made a fictitious claim to the suit

property. There was no fence at all at AB points. But there was a fence at points GD which was and up to which the appellant had got his right.

That fence belonged to Kareem Maraicair. After the purchase of the property by the appellant, the respondent had been giving trouble to the

appellant. He attempted to meddle with the south to north fence in between AD space and therefore a Panchayat was convened and the

Panchayatdars advised the respondent not to remove that fence thereafter. On the other hand, the document had been misinterpreted in the plaint.

No incident took place on 24.2.1981. On the other hand the respondent attempted to remove the western fence and when the appellant''s wife,

daughter and the son protested for the same, the respondent caused injuries to them by pelting with stones. So a criminal case was given and it was

pending investigation. There was no cause of action.

The trial court framed the following issues:

Whether the plaint plan is correct?

Whether the northern fence, mentioned in the suit belongs to the plaintiff?

Whether the plaintiff is entitled for permanent injunction as prayed for and there is any cause of action for the relief?

To what relief, if any, to which the parties are entitled?

On issue No. 1, the trial court found that the suit property was shown properly in the plan, but without giving the necessary measurements. On

the other issues, the trial court found that the standing trees had been raised only by the appellant and the respondent would not have raised them

because if really he used the suit property to go to the tank, he would not have raised the bamboo clusters and ultimately it held against the

respondent and by its judgment and decree dated 1.12.1981 the trial court dismissed the suit.

Aggrieved, the respondent filed appeal A.S.No. 12 of 1982 before the Subordinate Judge''s Court, Nagapattinam. Along with the appeal, the

respondent filed an application in I.A.No. 46 of 1984 for reception of certain documents as additional evidence in the appeal. The learned

Subordinate Judge without application of mind as to whether the requirements of Order 41, Rule 27, C.P.C. were satisfied, merely allowed the

application on the ground that no counter had been filed by the appellant. The learned subordinate Judge ultimately allowed the appeal holding that

the respondent had established his case and granted permanent injunction as prayed for by him.

Aggrieved, the present second appeal has been filed.

At the time of admission, the following substantial question of law was raised for consideration in the second appeal:

Whether the lower appellate court is justified in relying on documents filed and marked by the plaintiff only during the time of argument of the

appeal without properly proving the contents of the certified copies of some earlier documents?

Mr. V. Raghupathy, learned Counsel for the appellant contends that the lower appellate court has totally ignored the provisions of Order 41,

Rule 27 in entertaining the application for reception of additional evidence and deciding the appeal on the basis of those documents. In support of

his contention the learned Counsel relied on the following two judgments: (i) Marayee and Another Vs. Raju and Another, and (ii) Sarada (Smt)

and Others Vs. Manikkoth Kombra Rajendran, .

The learned Counsel for the respondent submits that inasmuch as the appellant had not filed any counter before the lower appellate court, the

lower appellate court was perfectly justified in receiving the documents as additional evidence and base its conclusion on these documents. I do not

agree. The provisions of Order 41, Rule 27, C.P.C. are clear that unless the following conditions are satisfied an appellate court had no jurisdiction

to entertain the application under Order 41, Rule 27:

The court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

The party seeking to produce additional evidence, established that notwithstanding the exercise of the diligence, such evidences 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.

Any other substantial cause has been interpreted by the courts as causes ejusdem generis. The Supreme Court in its decision reported in

Sarada (Smt) and Others Vs. Manikkoth Kombra Rajendran, , has held that if the appellate court decides to receive additional evidence it should

record the evidence of the parties or call for a finding in that behalf from the trial court. It should also be satisfied that without receipt of the

documents in question and the evidence in consideration thereof, it would not be possible to render fair justice between the parties. The salutary

requirements of the provisions of Order 41, Rule 27 have been given a go-by by the learned Subordinate Judge and consequently, the judgment

and decree of the learned Subordinate Judge have to be set aside and the matter remitted to the learned Subordinate Judge to consider the matter

afresh in the light of the observations made in the judgment. The second appeal will stand allowed and the matter remitted to the lower appellate

court for fresh consideration. A.S.No. 12 of 1982 will be restored to file by the learned Subordinate Judge, Nagapattinam and heard and decided

within a period of three months from to-day. The appellant will be entitled to refund of the court fee paid on the memorandum of second appeal.

There will be no order as to costs.

It is represented by the learned Counsel for the respondent that during the hearing of the second appeal suspension of injunction petition filed

by the appellant was dismissed. It is also represented that pending proceedings before the trial court and lower appellate court, he had temporary

interim injunction. The respondent is free to make an application before the lower appellate court for suitable relief.