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2008 DIGILAW 3614 (MAD)

Perumayee & Another v. Ramasamy & Others

2008-09-29

S.PALANIVELU

body2008
Judgment :- 1. The defendants are appellants before the Fast Track Court, Namakkal in A.S.No.266 of 2003. They filed an application under Order 41 Rule 27 C.P.C. seeking for reception of additional document in I.A.No.1 of 2008. The said document is a copy of the Sale Deed dated 31.01.2000 executed by the 4th defendant, Paramasivam in favour of the third plaintiff, Venkatachalam. 2. Learned counsel for the petitioner would submit that inasmuch as the document is very much relatable to the suit property and it would be more essential for discussion in the appeal, it has to be received as additional evidence. 3. In the counter, the respondents have alleged that since the document came to existence during the pendency of the case, the transaction is hit by the principle of lis pendens under Section 52 of the Transfer of Property Act and the petitioner has not adduced any convincing reason for the failure to produce such document before the Trial Court itself. 4. The learned Fast Track Judge, Namakkal has heard both sides and passed orders in I.A.No.1 of 2008 dismissing the application by observing that the requirements under Order 41 Rule 27 C.P.C. have not been satisfied by the petitioners. 5. As far as the case on hand is concerned, it has been the consistent view of this court that the application to receive the additional document as well as the appeal shall be heard simultaneously. This court, on 22.09.2008 has passed an order in C.R.P.(NPD) No.3127 of 2008, taking into consideration the earlier judgments of this court reported in 2001 (4) CTC 624 (Kumarasamy Mudaliar vs. Kuttiappa Mudaliar); 1994 (2) L.W. 376 (Ayyasami, M. And another vs. S.P.Ganesan) and in 1998 (3) CTC 138 (S.Santhana Selvaraj vs. Jafferkhan and two others). 6. It is no doubt true that the additional document has been brought about during the pendency of the suit and that could not by itself be the reason for rejecting the same by the Appellate Court. The legal consequences of the document which is said to be hit by the principle of lis pendens will be decided along with the merits of the case. Only if the merits of the case are discussed along with the features found in the additional document, the Appellate Court can adjudicate the rights of the parties finally as required by law and render complete judgment in the appeal. Only if the merits of the case are discussed along with the features found in the additional document, the Appellate Court can adjudicate the rights of the parties finally as required by law and render complete judgment in the appeal. At this juncture, it may also be observed that refusal of reception of any additional document pending the appeal may prejudice the rights of the parties. 7. In view of the above said opinion, this court finds it necessary to set aside the order passed by the learned Fast Track Judge, Namakkal and it may discuss about the aspect as regards the failure on the part of the petitioners to produce the additional document before the Trial Court at the time of trial of the Original Suit and it is left to the discretion of the Appellate Court to reject or accept the contentions of the parties on the basis of the additional document. If it is in the opinion of the Appellate Court that any additional evidence, oral or documentary is required for proof of the additional evidence, it may also remit the matter to the Trial Court, if it deems fit. 8. In the above stated circumstances, it is just and necessary to remit the matter back to the Appellate Court to take the application to receive the additional document on file by giving ample opportunities to both parties and decide the same along with the main appeal. With the above said observation, the Civil Revision Petition is disposed of. No costs. Consequently, connected M.P.No.1 of 2008 is closed.