Guruvammal vs Chinnamuniyandi

K. Kalyanasundaram, J.—This appeal is filed against the order of remand made in A.S.No.9 of 2012 dated 11.09.2012 on the file of the Sub Court, Virudhunagar.

For the sake of convenience, the parties are referred as per their litigative status in the suit.

Brief facts of the case are that the petitioners are plaintiffs in O.S. No.209 of 2009, which was filed for permanent injunction restraining the respondents herein from interfering with their peaceful possession and enjoyment of the property. The plaintiffs examined two witnesses and marked Exs.A1 to A6. On the side of the defendants, no witness was examined and no document was filed. The trial court after considering the oral and documentary evidence, decreed the suit. Aggrieved by the judgment and decree, the defendants filed an appeal in A.S. No.9 of 2012 before the Sub Court, Virdhunagar. In the appeal, the defendants filed an application in I.A. No.43 of 2012 to receive additional evidence. The learned appellate judge allowed the interim application and remanded the case to the trial court holding that the defendants were not given sufficient opportunity to defend the case. Challenging the order of remand, the present appeal is filed.

Heard Mr. Subbiah learned counsel for the appellants and Mr. C. Jeganathan for Mr. Veerakathiravan, learned counsel for the respondents.

Learned counsel for the appellants submitted that the defendants were given sufficient opportunity by the trial court, but they did not choose to appear before the trial court to defend their case. In the grounds of first appeal also, the defendants did not raise any grounds of non providing of sufficient opportunity by the trial court. The learned counsel further submitted that the defendants filed an application before the appellate court for receipt of additional evidence and in the affidavit also, the defendants did not give any reason for receiving additional evidence at the appellate stage. It is further submitted by the learned counsel that the documents sought to be marked by the defendants at the appellate stage are of the documents prior to the suit and the documents were in possession and knowledge of the defendants. In the above facts, the defendants are not entitled to mark documents in the appeal as per Order 41 Rule 27 CPC.

Learned counsel further submitted that the application filed for receipt of additional documents has to be taken up along with the appeal and if the appellate court after considering the evidence available on record comes to the conclusion that for pronouncing the proper judgment, additional documents are necessary, the appellate court itself can record additional evidence as provided under Order 41 Rule 28 or remand the case to the trial court for recording the evidence and for submitting a report. Learned counsel further submitted that the appellate court ought to have considered the documents produced by the defendants and if it comes to the conclusion that those documents are relevant, then only, the documents can be allowed to be marked in the appeal. Learned counsel submitted that the appellate court in this case did not give any reason for allowing additional evidence and without any valid reason remanded the entire case, which is not sustainable in law. In support of his contention, learned counsel has relied upon the judgments reported in M. Mani v. Cuddalore Municipality, 2011 (1) CTC 239, Arulmighu Kallalagar Thirukoil, Alagar Koil etc. v. The Government of Tamil Nadu, etc and others, 2004 (1) L.W. 647, P.V. Chinnaraj v. V. Nagaraj, 2013 (1) L.W 353 and Malayalam Plantations Ltd., v. State of Kerala, 2011 (1) CTC 122.

Per contra, learned counsel for the respondents submitted that in paragraph 10 of the grounds of appeal in A.S. No.9 of 2012, the defendants had prayed for remand of the case to enable them to mark the documents. Learned counsel further submitted that the plaintiff side evidence was closed on 29.09.2010 and thereafter the suit was posted for the evidence of the defendants on 01.10.2010. On that day, the defendants could not examine any witnesses, so the learned judge posted the case on 05.10.2010 for examination of the defendants side evidence as last chance. On that day also, the defendants did not examine any witnesses, hence the learned trial judge suo motu closed the evidence of the defendants and posted the case for arguments, which shows that the defendants were not given sufficient opportunity to lead their evidence. Learned counsel submitted that the trial court in a hurried manner, conducted the trial of the case and decreed the suit. It is submitted by the counsel for the respondents that the appellate judge had taken up the main appeal as well as the application filed for receipt of additional evidence on 11.09.2012 and felt that the defendants were not given sufficient opportunity and in the interest of justice, the additional documents produced by the defendants were allowed and the case was remanded for fresh disposal according to law, by giving fair chance to both sides.

Before testing the correctness of the order of remand passed by the first appellate court which is the issue involved in the appeal, I would like to consider the judgments of the Hon''ble Supreme Court and this Court in this regard.

(I) In Visalakshi Ammal v. Dhanalakshmi Ammal and others, 1989 (2) L.W 414, it has been held as follows:-

"The unsatisfactory consideration of an issue by the first court, and the non-advertence to the judicial precedents by the first court while deciding an issue and the need to take additional evidence, should not always be counted in favour of making an order of remand. These lacunae, if in fact they are present, can be rectified by the appellate court itself, unless there are very compelling circumstances to make an order of remand. An order or remand should not be taken to be matter of course on the above grounds. The power of remand should be sparingly exercised. There should be always endeavour to dispose of the case by the appellate court itself, when the commissions and omissions made by the first court could be corrected by the appellate court. It is not claimed by either side that there is a total dearth of evidence to decide the concerned questions. May be the parties were and are anxious to place additional evidence. But even that question can be thrashed out and settled by the appellate court itself. All the questions require comprehensive consideration on merits and decisions thereon the learned single Judge himself and we are not able to sustain the order or remand made on the grounds expressed by the learned single Judge on the facts of the present case. The question of additional evidence, it there is a move by any of the parties, shall certainly be considered by the learned single Judge on merits while disposing of the first appeal."

(ii) In P. Purushottem Reddy and another v. M/s. Pratap Steels Ltd., 2002 (4) L.W. 816, the Hon''ble Supreme Court has held as follows:-

"It is only in exceptional cases the Court may exercise the power of remand dehors the Rules 23 and 23A. To wit, the superior Court, if it finds that the judgment under appeal has not disposed of the case satisfactorily in the manner required by O.20. R.3 or O.41, R.31 of the CPC and hence it is no judgment in the eye of law, it may set aside the same and send the matter back for re-writing the judgment so as to protect valuable rights of the parties. An appellate Court should be circumspect in ordering a remand when the case is not covered either by R.23 or R. 23A or R.25 of the CPC. An unwarranted order of remand gives the litigation an undeserved lease of life and therefore, must be avoided. "

(iii) In Subbiah Konar and three others v. State of Tamilnadu through District Collector, Tirunelveli and other reported in 2003 (3) MLJ 524, this Court in paragraph 14 has held as follows :

"14. It is well settled that remand is not meant to give another chance to the parties to fill up the lacuna or to substantiate what the plaintiffs or defendants have failed to prove or establish. Remand is also not permissible to fill up the lacuna or to enable the parties to let in fresh evidence when the very plaintiffs who come forward with the suit have failed to establish their case."

(iv) In Arulmighu Kallalagar Thirukoil, Alagar Koil etc. v. The Government of Tamil Nadu, etc and others, 2004 (1) L.W. 647, while allowing the plea of reception of additional evidence, this Court has held as follows:-

"The genuineness of the documents sought to be produced is not disputed. They have come from proper custody. They are not any new documents. The plaintiff had called upon the defendants to produce the originals. It has not been done. No doubt mere non-filing of counter can not be a ground for receiving additional evidence. However, in our view, the materials already on record are not enough to pronounce judgment without taking into consideration the documents sought to be produced now. The trial court has also criticized the plaintiff stating that the plaintiff temple has not produced any document to show that the schedule hills belonged to it. In the circumstances, a clear case is made out for reception of these documents as additional evidence. We, therefore allow both the Civil Miscellaneous Petitions C.M.P. Nos.6110 and 6111 of 2013 and direct the documents set out therein to be marked as Exhibits A.46 and A.56."

(v) In Arockiaprakash v. Rangasamy, 2007 (4) L.W.298, this Court has held as follows:-

"9. The catena of judgments reiterate the following principles of law that the order of remand cannot be pas sed by the Appellate Court as a matter of course. Remand is permissible only when the Appellate Court in the interest of justice feels that the remand is just and appropriate and that the Appellate Court should arrive at a specific finding on the materials available on record that the judgment of the Trial Court is erroneous and liable to be set aside, which is a conditional precedent. The Appellate Court should not remand the case on the ground that the evidence is not properly assessed. Order of remand should not be made when the defect in the proceeding has been due to negligence or default of the party, who will benefit by the remand. The order of remand should not be made to fill up a lacuna by allowing the party to adduce evidence. If it is possible for the Appellate Court to evaluate the oral and documentary evidence, then it is not open to the Appellate Court to come to the aid of the parties to fill up the lacuna in the evidence. If material particulars are available, the Appellate Court itself should decide the matter one way or the other. Remanding the matter for fresh adjudication gives the litigation a fresh lease of life in the protraction of proceedings.

In the instant case, oral and documentary evidence has been let in by the parties. The Appellate Court itself can evaluate the evidence and dispose of the case on merits. Allowing the plaintiff to let in fresh evidence to prove his means would amount to, permitting him to fill up the lacuna in the evidence. The further reasoning of the Appellate Court that a specific finding is required with regard to Ex.P1-Promissory Note is also uncalled for and that the Appellate court itself should go into the facts and give a finding. Order 41 Rule 23 to 29 C.P.C. mandates a duty on the Appellate Court to find that the judgment of the Trial Court is erroneous. The Lower Appellate Court has not specifically found that the judgment and decree of the Lower Court is erroneous for no valid reasons. In such circumstances, the Lower Appellate Court has not followed the above said legal principles while deciding the appeal and has unnecessarily remanded the suit for fresh disposal to let in additional evidence, which is not called for."

(vi) In Malayalam Plantations Ltd., v. State of Kerala, 2011 (1) CTC 122, the Hon''ble Supreme Court has held that when an application is filed at the appellate stage for receipt of additional evidence under Order 41 Rule 27, the appellate court has to consider whether the documents sought to be adduced has any relevance to the issues involved in the case. It is relevant to extract paragraphs 10 to 12 of the said judgment:-

"10. In view of the above provision, in our opinion, when an application for reception of additional evidence under Order 41 Rule 27 of CPC was filed by the parties, it was the duty of the High Court to deal with the same on merits. The above principle has been reiterated by this Court in Jatinder Singh & Anr. v. Mehar Singh & Ors. AIR 2009 SC 354 and Shyam Gopal Bindal and Others v. Land Acquisition Officer and Another, (2010) 2 SCC 316.

If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case.

Adducing additional evidence is in the interest of justice. Evidence relating to subsequent happening or events which are relevant for disposal of the appeal, however, it is not open to any party, at the stage of appeal, to make fresh allegations 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 of CPC. Additional evidence cannot be permitted at the Appellate stage in order to enable other party to remove certain lacunae present in that case."

(vii) In M. Mani v. Cuddalore Municipality, 2011 (1) CTC 239, an issue came up for consideration about the receipt of additional evidence at the appellate stage and this Court relying upon the judgment in K.Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526 has held as follows:-

"22. Hence, in cases where the appellate Court finds that the materials on hand are not sufficient to definitely come to a conclusion or that the judgment and decree of the trial Court is erroneous on fact that receipt of additional evidence is required for doing substantial justice, that the matter should be decided afresh by the trial Court, then alone the Court can admit additional evidence and order a remand for fresh disposal in the light of the additional evidence produced by the aggrieved party. The appellate Court shall not, as a matter of course, admit additional evidence either at the instance of the plaintiffs or the defendant even before considering the trial Court''s judgment. Learned senior counsel pointed out that the default of the party in not producing an evidence is no ground for admitting the evidence and to order a remand.

Thus, the question of remand, in all circumstances, would have to be exercised with caution, subject only if and when the evidence on material are not sufficient enough to enable the Court to come to a decision on an issue. The sufficiency of the evidence has to be understood in the context of the difficulty in reaching a decision on the basis of the existing evidence satisfactorily to the mind of the Court delivering it. Hence, unless and until the appellate Court undertakes the exercise of considering the judgment of the trial Court, the decision of an appellate Court to receive additional evidence and thereby remand the case even before the stage of looking into the decision, would be a case of putting the cart before the horse. Dealing with Section 107(d) and Order 41 Rule 27 of C.P.C., in the decision reported in (2001) 1 SCC 309 (Mahavir Singh and others v. Naresh Chandra and another), the Apex Court pointed out that the parties are not, as a matter of right, entitled to the admission of additional evidence and it is purely a matter of discretion which has to be exercised judiciously and sparingly. Hence, the stage at which such an exercise would arise, certainly demands consideration of the Court that even before the decision of the trial court is tested, the appellate Court cannot decide on the merits of the I.A. to receive the additional evidence to order a remand. Going by the law declared by the Apex Court, in the decision reported in 2007 (2) CTC 49 (Kannathal and 4 Others v. Arulmighu Kanniammal Karuppasamy Thirukoil) relied on by the learned senior counsel, unless the appellate Court has considered the judgment of the trial Court on merits so as to form a view as to the necessity of admitting additional evidence, the decision to remand the matter back on receipt of an I.A. as a matter of course by hearing the party seeking the direction to file the additional evidence, would be in violation of Order 41 Rule 23 and 23-A of C.P.C. and hence, liable to be set aside."

(viii) In K.Sampoornam v. M.Karthieswaran, 2011 (3) MWN (Civil) 553 : 2012 (5) MLJ 362, following the decisions in Arockiaprakash v. Rangasamy, 2007 (3) CTC 383 and H.P. Vedavyasachar v. Shivashankara and another, CDJ 2009 SC 1594, it has been held as follows:-

"It is seen that the lower appellate court has remanded the matter only for the purpose of marking Will through witness, for which purpose remand is not necessary. Appeal is continuation of original proceedings and lower appellate court itself can record evidence after affording reasonable opportunity to opposite party to cross examine witnesses. Order of remand could be made only in terms of Order 41, Rule 23 of CPC, but in the present case non of the terms of Order 41 Rule 23 is available."

(ix) In Jayamoorthy v. Palani, 2013 (3) MWN (Civil) 47, at paragraphs 11 and 12, it has been held as follows:-

"11. Order XLI Rule 27 enumerates the circumstances under which a party can be permitted to lead additional evidence in the appellate stage. Either the document should have been produced before the trial court and improperly rejected by the trial court or the parties seeking permission to adduce additional evidence should prove that despite due diligence, such party did not have the knowledge of the existence of such evidence or that despite due diligence, the party was not able to produce the evidence before the trial court. Apart from the above said two grounds, the third ground is that the appellate court should be convinced that the production of the additional evidence is necessary for rendering a proper and complete justice. The party seeking permission to adduce additional evidence should fit his case in any one of the above said three grounds. If the party seeking permission to adduce additional evidence is not in a position to bring his case within the ambit of Rule 27, then the permission for adducing additional evidence cannot be granted. For better appreciation, Order 41 Rule 27 is reproduced here 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 -

(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 notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise if due diligence, be produced by him at the time when the decree appealed against was passed, or)

(b) the Appellate Court may 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."

In this case, as rightly contended by the learned counsel for the appellants in the second appeal, there is no discussion as to the reasons for the failure to produce the documents before the trial court itself and there is also absence of a clear finding that the production of the said document was absolutely necessary in the interest of justice for rendering a proper and complete justice. Which one of the above said clauses of Rule 27 was relied on by the learned lower appellate judge for allowing the said application and permitting the appellant therein (plaintiff/first respondent in the second appeal) to adduce additional evidence, has not been indicated by the lower appellate judge. The learned lower appellate judge has also not discussed the averments made in the affidavit filed in support of the application and the averments made in the counter affidavit of the opposite party. The order of the lower appellate judge incorporated in the said judgment allowing the said application is a crippled one devoid of necessary discussions."

(x) In P.V. Chinnaraj v. V. Nagaraj, 2013 (1) L.W 353, after considering the decision of the Hon''ble Supreme Court in Municipal Corporation, Hyderabad v. Sunder Singh, 2008 (8) SCC 485, it has been held as follows:-

"Before passing an order of remand, the first appellate court has to record reasons that re-trial was necessary. "

"On perusal of the records, we find that ample opportunity stands afforded by trial court to the defendant to examine further witnesses after his examination stood completed. The defendant has failed to avail such opportunity. Even otherwise remand is not an procedure easily to be resorted to as cited supra. All that Appellate court has felt necessary was to obtain the opinion of the expert by comparison of signatures of P.W.3 with that of the attesting witness in the document Ex.P.1 and the evidence of the said Unniappan. In the circumstances of the case, it safely can be stated that Order 41 Rule 27(b) stands attracted."

It is worthwhile to reproduce paragraphs 17, 18, 32, 33 and 34 in the judgment of 2008 (8) SCC 485 as extracted in 2013 (1) L.W 353:-

"17. Order 41 Rule 23 would be applicable when a decree has been passed on a preliminary issue. The appellate court must disagree with the findings of the trial court on the said issue. Only when a decree is to be reversed in appeal, the appellate court considers it necessary, remand the case in the interest of justice. It provides for an enabling provision. It confers a discretionary jurisdiction on the appellate court.

It is now well settled that before invoking the said provision, the conditions precedent laid down therein must be satisfied. It is further well settled that the court should loathe to exercise its power in terms of Order 41 Rule 23 of the Civil Procedure Code and an order of remand should not be passed routinely. It is not to be exercised by the appellate court only because it finds it difficult to deal with the entire matter. If it does not agree with the decision of the trial court, it has to come with a proper finding of its own. The appellate court cannot shirk its duties.

A distinction must be borne in mind between diverse powers of the appellate court to pass an order of remand. The scope of remand in terms of Order 41 Rule 23 is extremely limited. The suit was not decided on a preliminary issue. Order 41 Rule 23 was therefore not available. On what basis, the secondary evidence was allowed to be led is not clear. The High Court did not set aside the orders refusing to adduce secondary evidence.

Order 41 Rule 23-A of the Civil Procedure Code is also not attracted. The High Court had not arrived at a finding that a retrial was necessary. The High Court again has not arrived at a finding that the decree is liable to be reversed. No case has been made out for invoking the jurisdiction of the Court under Order 41 Rule 23 of the Code.

An order of remand cannot be passed on ipse dixit of the court. The provisions of Order 2 Rule 2 of the Civil Procedure Code as also Section 11 thereof could be invoked, provided of course the conditions precedent therefor were satisfied. We may not have to deal with the legal position obtaining in this behalf as the question has recently been dealt with by this Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas."

Reverting back to the case on hand, perusal of the appellate court judgment shows that the learned appellate Judge has not given any finding about the relevancy of the document for the issues to be decided in the appeal. The learned appellate Judge further did not give any finding as to whether the documents sought to be marked by the defendants are required for rendering substantial justice and on the other hand has held that the case was posted for evidence of the defendants side on 01.10.2010 and on 05.10.2010, but due to non examination of any witnesses by the defendants, the trial court suo motu closed the evidence of the defendants side and posted the case for arguments. The appellate court has held that in the interest of justice, the trial court could have been little more lenient to enable the defendants to examine the witnesses by giving even few more chances and further held that to do substantial justice, examination of witnesses and production of documents are very essential. The learned Judge has allowed the application filed by the defendants to receive additional documents without assigning any reasons and remanded the case for re-trial.

In the light of the judgments of the Hon''ble Apex Court and this Court, the appellate court ought to have decided the relevancy of the documents before allowing them to be marked as additional evidence in this case. Further, the appellate court has not rendered any finding, whether the materials available on record are not sufficient to definitely come to the conclusion as held in 2004 (1) L.W. 647 or that the judgment and decree of the trial court is erroneous on fact that receipt of additional evidence is required for rendering substantial justice.

In the remand order passed by the appellate court, except by stating that even though the defendants were given sufficient opportunity to let in evidence, due to non examination, the trial court suo motu closed the evidence of the defendants and therefore, to render substantial justice, ample opportunity has to be given to the defendants, no specific finding as held in P.V. Chinnaraj v. V. Nagaraj, 2013 (1) L.W 353 has been recorded that on what other grounds de novo trial was necessitated. If non providing of opportunity to the defendants alone is the ground for ordering remand, then the first appellate court, being the final fact finding forum, they themselves can afford the same and dispose of the case, for which, remand is not necessary. Therefore, the appellate Judge taking into consideration the facts of the case shall consider whether the documents sought to be marked by the defendants as additional evidence is absolutely necessary in the interest of justice for rendering a proper and complete justice as held in Jayamoorthy v. Palani, 2013 (3) MWN (Civil) 47 and thereafter decide the appeal on merits and in accordance with law after giving opportunity to both the parties. While considering the plea of reception of additional evidence, the appellate court must also ensure that the documents sought to be marked do not fill up the lacunae or to patch up the weak points in this case as held in Arockiaprakash v. Rangasamy, 2007 (3) CTC 383 : 2007 (4) LW 298 and Malayalam Plantations Ltd. v. State of Kerala, 2011 (1) CTC 122.

In view of my findings supra, the order of remand passed by the appellate court is set aside and the case is remanded to the appellate Judge namely, learned Subordinate Judge, Virudhunagar, for fresh consideration in the light of the judgments of the Hon''ble Supreme Court and this Court cited supra.

In the result, the Civil Miscellaneous Appeal is allowed. Consequently, M.P(MD)Nos.1 of 2012 and 1 of 2013 are closed. No costs.