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2013 DIGILAW 3155 (MAD)

Pattu v. Manickam

2013-09-03

B.RAJENDRAN

body2013
JUDGMENT : 1. By order dated 22.7.2013, this Court dismissed the civil revision petition against the eighth respondent, since no steps were taken to bring on record the legal representatives. This Court also gave time to the learned counsel for the petitioner to take steps to bring on record the legal representatives of the first and fifth respondents after recording his submission that they also died. Even after a lapse of more than one month, no steps are taken. Hence, the civil revision petition is dismissed against the first and fifth respondents as well. 2. The revision petitioner challenges the order dated 23.8.2004 passed by the learned Subordinate Judge, Ariyalur in I.A.No.258 of 2003 in A.S.No.43 of 1993. According to the learned counsel for the petitioner, the lower appellate Court has disposed off the interlocutory application filed under Order 41, Rule 27 C.P.C., seeking permission to adduce additional evidence independently, without disposing of the main appeal, which is pending, as the application is not in tune with Order 41, Rule 27 and the order passed by the lower appellate Court is also not in accordance with law. Hence, the order of the lower appellate Court has to be set aside. 3. The learned counsel for the respondents 2 to 4 mainly contended that the suit is for declaration of title and permanent injunction. Originally the respondents filed Ex.B3, in which the old survey number alone was given. To correlate the same with the corresponding new survey number, they produced the original settlement register in the trial Court itself. But due to inadvertence and mistake, they failed to mark the same before the trial Court. In view of the same, they were constrained to file the application under Order 41, Rule 27 C.P.C., and the lower appellate Court, taking into consideration of the fact that the original settlement register had been produced in the trial Court itself, allowed the application. Merely because an order is pronounced in the interlocutory application, pending the appeal, would not in any way hamper or prejudice the case of the revision petitioner. Hence, he contended that the order of the lower appellate Court, being fair and reasonable, need not be interfered with. 4. Heard the learned counsel for the parties. 5. Merely because an order is pronounced in the interlocutory application, pending the appeal, would not in any way hamper or prejudice the case of the revision petitioner. Hence, he contended that the order of the lower appellate Court, being fair and reasonable, need not be interfered with. 4. Heard the learned counsel for the parties. 5. It is an unfortunate case that when the appeal itself is of the year 1993 and the same has been pending for quite a long time before the lower appellate Court, in the year 2003, the present application under Order 41, Rule 27 C.P.C., came to be filed by the respondents. The only grievance of the petitioner is that the lower appellate Court ought to have considered that application along with the main appeal. In my considered opinion, though normally it could have been disposed of along with the main appeal, in this case, the lower appellate Court, taking into consideration of the fact that the original settlement register had already been produced and the evidence also had been recorded by the trial Court in regard to the very document coupled with the fact that due to inadvertence, the same was not marked in the trial Court, has chosen to allow the application to rectify the mistake. In this context, useful reference can be made to the judgment of the Hon'ble Supreme Court in North Eastern Railway Administration, Gorakhpur v. Bhagwan Das (D) by Lrs., 2008-4-LW.80,while considering the power of Court to entertain an application under Order 41, Rule 27 C.P.C., pending an appeal, holding as follows: "17....In any event, had the Court found the additional documents, sought to be admitted, necessary to pronounce the judgment in the appeal, in a more satisfactory manner, it would have allowed the application and, if not, the application would have been dismissed. Nonetheless, it was bound to consider the application before taking up the appeal...." 6. In view of the above, I do not find any reason to interfere with the reasoned order of the lower appellate Court. Hence, the civil revision petition is dismissed. However, the lower appellate Court is directed to dispose of the appeal in A.S.No.43 of 1993 within a period of two months from the date of receipt of a copy of this order. Consequently, C.M.P.No.17488 of 2004 is also dismissed. No costs.