MANU/TN/2158/2002

Equivalent/Neutral Citation: 2003(2)AIC 73, AIR2003Mad54, 2003-1-LW221, (2003)1MLJ33

IN THE HIGH COURT OF MADRAS

C.R.P. No. 1216 of 2002 and C.M.P. No. 10249 of 2002
Decided On: 11.11.2002
Pushpa Bai Stalin and Ors. Vs. Dhaya Poomkamazh and Ors.
Hon'ble Judges/Coram:
A. Kulasekaran, J.
Counsels:
For Appellant/Petitioner/Plaintiff: C. Godwin, Adv.
For Respondents/Defendant: N. Rajan, Adv. For RR 1 and 2
Case Note:
Civil - Adduce document - Revision filed challenging the order to produce
seven additional documents - Held, 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 were after the decree was passed - Unfortunately, the Appellate
Court failed to consider the said factors, but, mechanically allowed the
application which was evident in the impugned order, nothing was whispered
about the relevancy of the documents - Order passed by the Appellate Court
set aside - Revision allowed.
ORDER
A. Kulasekaran, J.
1. 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.

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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
th at 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

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 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 pronounce 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.
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