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2013 DIGILAW 2264 (MAD)

Vinny v. D. Balasubramaniam

2013-07-01

G.RAJASURIA

body2013
JUDGMENT 1. This Second appeal is focused by some of the defendants animadverting upon the judgment and decree dated 31.8.2012 passed by the Subordinate Judge, The Nilgiris, in the District Munsif cum Judicial Magistrate, Coonoor, in O.S.No.127 of 2001, which was one for permanent injunction. A.S.No.57 of 2011 in confirming the judgment and decree dated 18.2.2010 passed by 2. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this Second Appeal, would run thus: (a) The first respondent herein, as plaintiff, filed the suit for bare injunction in respect of the property described in the schedule of the plaint, which admittedly belonged to the Government. (b) According to the plaintiff, he has been in possession and enjoyment of the suit property for a pretty long time and cultivating tea. While so, during the month of September 1998, the defendants attempted to trespass into the suit property and cut the trees thereon planted by the plaintiff. They also attempted to make such trespass in the month of May, August, October and November 2001. (c) It is also the case of the plaintiff that earlier one suit was filed in O.S.No.194 of 1986, which was subsequently dismissed for default. Accordingly, the plaintiff prayed for injunction. 4. Per contra, the 8th defendant filed the written statement, which was adopted by D1, D4, D6 and D7, challenging and impugning the averments/allegations in the plaint; the gist and kernel of them would be to the effect that the earlier suit filed by the plaintiff was dismissed for default and the subsequent suit was not tenable; the plaintiff has not been in possession and enjoyment of the suit property; D8 has been in possession and enjoyment of the suit property and planted tea and also her farmhouse is situated there, where her husband stays and wards off straying cattle and wild pig. 5. Whereupon issues were set down for trial. Up went the trial, during which, the plaintiff examined himself as P.W.1 along with P.W.2 and marked Exs.A1 to A21. The 6th defendant examined himself as D.W.1 along with D.W.2-the Junior Assistant and marked Exs.B1 to B4. Exs.C1 and C2 were marked as Court documents. 6. 5. Whereupon issues were set down for trial. Up went the trial, during which, the plaintiff examined himself as P.W.1 along with P.W.2 and marked Exs.A1 to A21. The 6th defendant examined himself as D.W.1 along with D.W.2-the Junior Assistant and marked Exs.B1 to B4. Exs.C1 and C2 were marked as Court documents. 6. Ultimately, the trial Court decreed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgment and decree of the trial Court. 7. Being aggrieved by and dissatisfied with the judgments and decrees of both the fora below, some of the defendants preferred this appeal on various grounds and also suggesting the following substantial questions of law: "1) Whether the main original suit is barred by the principle of resjudicata in the background of the fact that earlier suit was dismissed for default, between the same parties and same survey number? 2) Whether the judgment and decree in O.S.No.194 of 1986 dated 13.2.97 would operate as resjudicata as against the present suit? 3) Whether the District Court is right in confirming the judgment of the trial Court without discussing the case on the basis of materials and whether the judgment of trial Court is proper consideration of the case? 4) Whether in law the courts below are right in overlooking that they have jurisdiction to decide and determine whether the plaintiff is entitled to the relief as prayed? 5. Whether the courts below have erred in giving findings and deciding the matter in contravention of settled provision of law? 6. Whether the non rejection of the suit by the trial Court below can be termed as arbitrary or fanciful vitiated by patent illegality resulting in exercise of jurisdiction not vested in law?" (extracted as such) 8. Heard the learned counsel for the appellants, who would pyramid his arguments, which could succinctly and precisely be set out thus: (i) The documents marked on the side of the plaintiff in no way would prove that he has been in possession and enjoyment of the suit property. The earlier suit filed by him for injunction was dismissed and he did not take any steps to get the suit restored for prosecuting it further. The earlier suit filed by him for injunction was dismissed and he did not take any steps to get the suit restored for prosecuting it further. (ii) In fact, the eighth defendant has been in possession and enjoyment of the suit property and the said fact was simply ignored by the Courts below, warranting interference in second appeal. 9. At the outset itself, I would like to fumigate my mind with the following decisions of the Honourable Apex Court: 2012(8) SCC 148 [Union of India v. Ibrahim Uddin and another]; an excerpt from it would run thus: "59. Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of facts or of law. In SBI v. S.N. Goyal (2008) 8 SCC 92 , this Court explained the terms "substantial question of law" and observed as under: (SCC p.103, para 13) "13......The word "substantial" prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties ......any question of law which affects the final decision in a case is a substantial question of law as between the parties. A question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law......There cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case." (emphasis added) 48. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. To sum up on the issue, it may be held that an application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite conditions incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the Court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage. 10. In the same precedent, the following decisions are found referred to: (1) AIR 1962 SC 3314 [Chunilal V. Mehta & Sons Ltd. v. Century Spg. and Mgf. Co. Ltd.] (2) (2011) 1 SCC 673 [Vijay Kumar Talwar v. CIT] (3) AIR 1947 PC 19 [Bibhabati Devi v. Kumar Ramendra Narayan Roy] (4) (1949) 17 ITR 269 (Nag) [Suwalal Chhogalal v. CIT] (5) AIR 1957 SC 852 [Oriental Investment Co. Ltd. v. CIT] (6) AIR 192 SC 1604 [Jagdish Singh v. Natthu Singh] (7) (1996) 5 SCC 353 [Parativa Devi v. T.V. Krishnan] (8) (1998) 6 SCC 423 [Satya Gupta v. Brijesh Kumar] (9) AIR 2000 SC 534 [Ragavendra Kumar v. Firm Prem Machinery & Co.] (10) AIR 2000 SC 1261 [Molar Mal v. Kay Iron Works (P) Ltd.] (11) (2010) 11 SCC 483 [Bharatha Matha v. R.Vijaya Renganathan] (12) (2010) 12 SCC 740 [Dinesh Kumar v. Yusuf Ali] (13) (2002) 3 SCC 634 [Jai Singh v. Shakuntala] (14) (2008) 12 SCC 796 [Kashmir Singh v. Harnam Singh] 11. A mere running of the eye over the above precedents would connote and denote, exemplify and demonstrate that unless there is any substantial question of law is involved, the question of upsetting the finding of the court below would not arise. 12. A mere running of the eye over the above precedents would connote and denote, exemplify and demonstrate that unless there is any substantial question of law is involved, the question of upsetting the finding of the court below would not arise. 12. Keeping in mind the dictum as found enunciated in the aforesaid precedents of the Supreme Court, I would like to analyse the records. 13. A mere running of the eye over the judgments of both the Courts below and the records available would exemplify and demonstrate that the suit property measuring an extent one acre does not belong to either the plaintiff or the defendants. Admittedly it belongs to the Government. The trial Court adverting to the documents marked on the side of the plaintiff would give a finding on fact that the plaintiff proved his possession over the suit property; whereas, it is the finding of the trial Court that there is nothing to indicate that the defendants have been in possession and enjoyment of the suit property. 14. Both the fora below adverting to Exs.A5 to A12, which evidence the payment of penalty by the plaintiff to the Government in response to 'B' memo issued by the Government, would hold that on 19.4.1986, 23.3.1987, 14.3.1988, 7.12.1989, 26.3.1990, 13.2.1992 and 23.3.1994 the plaintiff paid such penalty and those are all ante litem motam documents proving the possession of the plaintiff over the suit property. Both the Courts below also clarified that even though in those receipts the name 'Henry Francies' was found specified, it referred only to the plaintiff 'D.Balasubramaniam' in view of Ex.A1-the Gazette Notification, by which the plaintiff got his name 'Henry Francies' changed into 'D.Balasubramaniam'. Ex.A13 is the notice issued by the authority concerned under Section 5 of Act 3 of 1905 for evicting the plaintiff from the suit property and that was also correctly relied on by both the Courts below for holding that the plaintiff has been in possession and enjoyment of the suit property. 15. Ex.A13 is the notice issued by the authority concerned under Section 5 of Act 3 of 1905 for evicting the plaintiff from the suit property and that was also correctly relied on by both the Courts below for holding that the plaintiff has been in possession and enjoyment of the suit property. 15. The learned counsel for the defendants would submit that the evidence of D.W.2-Ravichandran-the Junior Assistant would enure to the benefit of the defendants to show that the defendants in fact got subsidy from the Government for cultivating tea, for which, the first appellate Court would clearly indicate, by referring to D.W.2's deposition that no such subsidy was given in favour of the defendants for cultivating the Government's land. It is also the finding of the first appellate Court that for cultivating the Government land, no subsidy could be given. 16. The present suit has been filed in the year 2001. Whereas, Exs.B1 to B4 all would relate to 2005 to 2009, so to say, pendente lite those receipts emerged, which can never be taken as the ones having probative force of their own and it is quite obvious and axiomatic. Those documents cannot be dignified with the title of ante litem motam documents, whereas, the trial Court very clearly relied upon ante litem motam documents filed on the side of the plaintiff and held that possession over the suit property was proved by the plaintiff. In such a case, this Court being the second appellate Court would have no justification to interfere with the concurrent findings of fact, unless there is any perversity or illegality. 17. I could see no perversity or illegality in the judgments rendered by both the fora below. There is no shard or shred, jot or miniscule, iota or molecular extent of evidence on the side of the defendants to show that anterior to the filing of the suit, the defendants had in their favour any document to show their alleged possession over the suit property. Hence, I am of the considered view that there is no merit in the second appeal. 18. Hence, I am of the considered view that there is no merit in the second appeal. 18. The learned counsel for the second appellants/defendants would invite the attention of this Court to the typed set of papers wherein at page Nos.1 to 5 the judgment and decree passed in the earlier suit O.S.No.194 of 2008 are found enclosed and in that it is found specified that both the parties were absent at the hearing, whereupon the suit was dismissed for default. As such, Order 9 Rule 9 of C.P.C., even though not pressed into service specifically in the written statement, cannot be taken as one applicable in this factual matrix. If in a case, the plaintiff was absent and the defendant was present at the hearing then the question of pressing into service Order 9 Rule 9 of C.P.C would arise. Even that plea was not specifically taken by the defendants and the question of pressing into service the principle of res-judicata also is a well-neigh impossibility as no finding on merit was rendered in the previous litigation. 19. In the result, the second appeal is dismissed. No costs.