Ignasiammal vs Mrs. Fathima Beevi and Another

Govardhan, J.—The first defendant is the appellant.

The plaintiff has filed the suit for declaration and permanent injunction is respect of the suit property. The defendants 1 and 2 resisted the same

before the trial court. The trial Court has framed as many as five issues on the pleadings and one additional issue and has held that the plaintiff has

no cause of action, the first defendant has got a right in the common pathway, the first defendant has a right to let out his eaves water on the

northern extreme of the five feet space running north-south and the case of the first defendant that the plaintiff is not entitled to any of these three

reliefs has been proved and dismissed the suit. As against the said judgment of the trial court, the plaintiff has preferred an appeal to the Sub Court,

Srivilliputhu.

In the Sub Court, the appellant has filed an interlocutory application in I.A. No. 143 of 1990 under Order 41, Rule 27 of the CPC for reception

of a sale deed, as additional evidence, under which she had purchased a portion marked as C L N O in the plaint plan, from the second

respondent on 22.1.1986 and it has not been produced in the trial court at the time of the trial, by mistake and over sight and it has to be received

as additional evidence.

The learned Subordinate Judge has passed the impugned judgment remanding the suit to find out how much the sale deed filed by the appellant

in I.A.No.143 of 1990 in the Sub Court would establish the plaintiff''s case.

Aggrieved over the same, the first defendant has come forward with this appeal.

The learned counsel appearing for the appellant would argue that the trial court after considering the oral and documentary evidence adduced by

the plaintiff as well as the defendants, and also the Commissioner''s report and plan, has treated the suit property as a common pathway and rightly

negatived the claim of the plaintiff and the appellate court without considering whether the requirement of Order 41, Rule 27 of the CPC has been

complied with before ordering the reception of the sale deed filed by the appellant, has remand the suit for fresh disposal to find out how much this

sale deed would help the plaintiff in establishing her case and in fact, it amounts to the filling up of lacuna in the plaintiff''s case and therefore, it has

to be set aside. In the judgment, the learned Subordinate Judge has made certain observations which are to be taken note of and it is as follows:

The evidence of P.W.1, and D.W.1 in their Chief examination does not support the plaintiff''s case. The evidence of P.W.2 during cross

examination is to the effect that his evidence in chief examination cannot be believed. Whatever it may, be even though the plaintiff has to prove her

case, when the evidence of both asides is analyzed, it is not to the effect that the plaintiff has established her case is apparently seen."" At another

portion, the learned Subordinate Judge has observed that since the appellant has filed the additional document in I.A. No. 143 of 1990 stating that

the plaintiff''s case would be proved by the same, it is apparent that the plaintiff''s case has not been proved previously while the evidence adduced

by the plaintiff already does not establish her case. In order to find out the true state of affairs, the application in I.A. No. 143 of 1990 is allowed.

It must be found out how the document filed in I.A. No. 143 of 1990 establishes the plaintiff''s case and for that purpose, the matter has to be

remitted."" These observations by the learned subordinate judge had been brought to the notice of this Court by the. learned counsel appearing for

the appellant and he would argue that when the learned Subordinate Judge has come to the conclusion that the evidence already adduced by the

plaintiff does not establish her case, the appeal should have been dismissed and in spite of that, the learned Subordinate Judge has allowed the

application for reception of additional document and remanded the suit for the purpose of finding out how far this additional evidence establishes

the appellant''s case and it is erroneous. According to the learned counsel appearing for the appellant, the learned sub Judge has not even come to

the conclusion that the additional document ordered to be received is an essential document, but only wants to know how the said document

would help the appellant and a remand order cannot be made for that purpose. From the observations referred above, I am of opinion that there is

some force in this argument of the learned counsel appearing for the appellant.

Order 41, Rule 27 of the CPC enables the production of additional evidence in the appellate court only in certain contingencies viz., the trial

court has refused to admit the evidence which ought to have been admitted or the parties seeking to produce the additional evidence establishes

that notwithstanding the exercise of the due diligence, such evidence which was within his knowledge could not be produced by him at the time of

the trial or the appellate court requires the document to be produced to enable it, to pronounce judgment or for any other substantial cause. None

of the above contingencies has arisen in the present case. The learned Sub Judge, himself has observed that how for this document will help the

plaintiff is to be found out. In the affidavit filed by her, for reception of the document, the appellant has not given the reasons for not producing the

document. She has stated that the non- production of the document earlier is by mistake and by due to oversight and it came to the light only when

she sworn to the affidavit, the appellant has produced. The appellant has obtained the sale deed on 22.1.1986 subsequent to the filing of the suit in

1984. The judgment was pronounced in the suit only on 30.6.1987. The appellant as the plaintiff, never filed the said document in the trial Court

during the trial. No reason has been given by the appellant for not producing the said document in the trial court except stating that it is by a

mistake and oversight.

Order 41, Rule 27 of the CPC cannot enable the reception of this document in the appellate court and that too to find out the truth how far this

document will prove the plaintiff''s case. The learned Subordinate Judge has only enabled the plaintiff to fill up he lacuna by remanding the suit.

The observations of the learned subordinate Judge that the evidence adduced by the plaintiff and the defendants does not support their

respective case cannot be a ground for remanding the suit. It has been held in the decision reported in Visalakshmiammal v. Dhanalakshmiammal,

1989 (2) L.W. 414 that ""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 riot 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."" Therefore, even if the evidence of P.W.1 and D.W.1 does

not establish their respective rival contentions, it can be rectified by the appellate court itself and the matter need not be remanded to the trial court.

The learned counsel appearing for the respondent would argue that where there is a dispute with regard to the identify of the property, the

order of remand can be made relying upon the decision reported in Khatun Bibi and Others Vs. Sm. Moni Mala Mitra, . In the above judgment, it

has been held that

It cannot be said that the Appellate Court would in no circumstance order for appointment of a commission for local investigation, if once the

party requiring to make such prayer fails to do so.

But this observation of the Calcutta High Court cannot be availed by the appellant before the Sub Court, since there is a difference between a case

where a party seeks for an opportunity to adduce additional evidence and for praying for local investigation and a case where such direction

occurs from the court itself. In the case on hand, the appellant before the sub court seeks an opportunity to adduce additional evidence stating that

by oversight and mistake, the document has not been filed. The appellant therefore, cannot be allowed to have a second opportunity to prove her

case since the appellate court may not have unfitted power to remand a case for additional evidence. It is only in cases where without the

document in question, an effective adjudication by the point it issue is not at all possible, the court can exercise its powers under Order 41, Rule 23

of the Code of Civil Procedure. But, such is not the case on hand. Therefore, the order of remand by the learned Subordinate Judge, Srivilliputhur

is not correct and is liable to be set aside.

In the result, the appeal is allowed setting aside the order of remand passed by the learned sub Judge, Srivilliputhu The learned Sub Judge,

Srivilliputhur is directed to dispose of the appeal by himself on the evidence already on recorded by the learned District Munsiff. No costs.