Thiruvenkadam vs Saroja and 2 Others

S. Palanivelu, J.—The petitioner is the second defendant and appellant before the learned Principal Sub-Judge, Erode in A.S. No. 121 of

2007. He filed an Application in I.A. No. 345 of 2008 under Order 41, Rule 27, C.P.C. requesting the Court to receive the partition deed dated

20.06.1959 as additional evidence and the Court, on 28.07.2008 closed the Petition by observing that the Appeal was ready for arguments.

Aggrieved by this order, the petitioner has approached this Court. The Appellate Court has not mentioned anything with regard to the merits of the

Interlocutory Application and the document filed along with it, but, passed a single line order that the Petition could not be taken up since the

Appeal was ready for arguments. In law, it is incumbent upon the Appellate Court to hear the Petition for receipt of additional evidence along with

the Appeal and failure of which would render injustice to the parties. It is required that the Appellate Court has to advert its concentration to the

merits of the Appeal and the features available in the additional document and to come to a conclusion whether the document could be received in

additional evidence or not; provided, the person seeking the relief should comply with the requirements under Order 41, Rule 27, C.P.C. Without

considering those aspects, merely closing the Application is not appreciated.

Learned counsel for the petitioner would garner support from a decision of this Court reported in Kumarasamy Mudaliar Vs. Kuttiappa

Mudaliar wherein, it has been held that it is a well settled position of law that an Application filed in the Appeal for permission to adduce additional

evidence has to be considered along with the main Appeal and not separately and in this regard he also referred to another decision of this Court

reported in M. Ayyaswami and another Vs. S.P. Ganesan and another . An identical proposition has been laid down in another decision of this

Court in & S. Santhana Selvaraj Vs. Jaffar Khan and 2 others, . Only after extending opportunity to the petitioner under Order 41, Rule 27,

C.P.C., the Appellate Court can adjudicate the rights of the parties completely. In case, if the Petition to receive the additional document is thrown

at the threshold, it would amount to refusal of justice to the persons concerned and there could be no final adjudication of the matter. In such view

of this matter, this Court finds it necessary to direct the Court below to take the Application on file. Hence, the learned Principal Sub-Judge, Erode

is directed to restore I.A. No. 345 of 2008 on its file, to afford ample opportunities to both sides to put forth their contentions and to hear the

same along with the Appeal in A.S. No. 121 of 2007 and dispose of the same in accordance with law.

With such observation, the Civil Revision Petition is allowed. No costs. Consequently, connected M.P. No. 1 of 2008 is closed.