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2013 DIGILAW 573 (KER)

Devaki v. Subramanian

2013-07-09

THOMAS P.JOSEPH

body2013
JUDGMENT : Thomas P. Joseph, J. The following substantial questions of law are framed for a decision: (1) Whether on the facts and in the circumstances of the case the lower Appellate Court is correct in law in exercising jurisdiction and discretion under O.XLI R. 27(1)(b) of the Code of Civil Procedure, 1908 (for short, "the Code") in allowing LA. Nos. 250 and 251 of 2013? (2) Is the lack of advice by the counsel to cause production of original of a disputed document, a contention that is not proved by any acceptable evidence, a ground enabling production of additional evidence at the appellate stage? (3) Whether the order of remand granted by the lower Appellate Court is sustainable under O. XLI R. 23 or 23A of the Code? (4) Whether remand of the case is sustainable in law? 2. The appeal arises from the judgment dated 27.2.2013 in A.S. No. 30 of 2012 of the Additional District Court, Ottapalam setting aside dismissal of O.S. No. 100 of 2008 of the Munsiffs Magistrate's Court, Pattambi and remitting that case for fresh decision. 3. The appellant/plaintiff sued the respondents/defendants for partition and separate possession of the ?rd share she claimed in the suit property. According to her, the suit property belonged to the late Narayanan whose children are the appellant and the respondents. Preceding institution of the suit the appellant issued a notice demanding partition. That was replied by the first respondent claiming that the late Narayanan had executed a settlement deed concerning the suit property in his favour on 28.8.2003. 4. In view of the said contention of the first respondent in the reply notice the appellant alleged in the plaint that the late Narayanan was paralytic for about 3 years prior to his death on 29.9.2004 and could not execute any such settlement deed. She denied execution of the settlement deed. 5. The first respondent resisted the suit relying on the settlement deed dated 28.8.2003. 6. One of the issues learned Munsiff-Magistrate raised was whether the first respondent has acquired title over the suit property as per settlement deed dated 28.8.2003. The appellant gave evidence as PW1 and examined PWs 2 to 4. PW4 is a Medical Officer examined to prove alleged illness of the late Narayanan. The first respondent did not adduce oral evidence but proved Exts. B1 to B9. Ext. The appellant gave evidence as PW1 and examined PWs 2 to 4. PW4 is a Medical Officer examined to prove alleged illness of the late Narayanan. The first respondent did not adduce oral evidence but proved Exts. B1 to B9. Ext. B6 is the certified copy of the settlement deed. Marking of that document was objected but the Trial Court overruled that objection and marked in it in evidence. Trial Court held that original of Ext. B6 is not produced by the first respondent and dismissed the suit. 7. In the appeal at the instance of the first respondent he filed two applications-I.A. Nos. 250 and 251 of 2013. The first one was to receive I.A. No. 251 of 2013 and list of documents and witness schedule and the latter, to direct the Manager of the Federal Bank to produce original of Ext. B6. Though those applications were opposed by the appellant, the lower Appellate Court allowed the same and remitted the case to the Trial Court for fresh decision. Hence this appeal. 8. The learned counsel for the appellant has contended that the lower Appellate Court was not correct in allowing I.A. Nos. 250 and 251 of 2013. It is argued that summoning documents as requested for in I.A. No. 251 of 2013 amounts to receiving additional evidence under R. 27 of O. 41 of the Code of Civil Procedure (for short, "the Code"). The learned counsel argues that receiving additional evidence in appeal is circumscribed by the limitation prescribed under Clauses (aa) and (b) of R. 27 of O.41 of the Code which do not exist in this case. This is not a case where the Court required additional evidence to render judgment in the case. The first respondent was in possession of the relevant documents and was aware of the contention being raised by the appellant but in spite of that, on a plea that the burden of disapproving the settlement deed is on the appellant refused to produce the original document in the Trial Court. It is argued that since due execution of the settlement deed is denied by the appellant that document could have been admitted in evidence only in compliance of Section 68 of the Evidence Act (for short, "the Act") which is not done. There was nothing which prevented the first respondent from producing the relevant document in the Trial Court. It is argued that since due execution of the settlement deed is denied by the appellant that document could have been admitted in evidence only in compliance of Section 68 of the Evidence Act (for short, "the Act") which is not done. There was nothing which prevented the first respondent from producing the relevant document in the Trial Court. In the circumstances, belated request to summon the document should not have been accepted. Reliance is placed on the decisions in Koyappathodi M. Ayisha Umma v. State of Kerala AIR 1991 SC 2027 ) (paragraph 2)), State of Gujarat and Anr. v. Mahendrakumar Parshottambhai Desai, (2006) 9 SCC 772 ), Union of India v. Ibrahim Uddin and Anr., 2012(3) CCC 577 (S.C.) : 2012 (3) ACJ 137 (s.c.) : 2012 (3) KLT SN 73 (C. No. 79) SC) ; (2012) 8 SCC 148 ) (paragraph 36 to 41 and 48) Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh AIR 1968 SC 933 ). It is also argued that a remand should not have been allowed at the mere asking when the first respondent had sufficient opportunity to adduce evidence in the Trial Court but for whatever reason it be, that was not done. It is no excuse to say that there was mistake on the part of the counsel in adducing proper evidence in the Trial Court. Hence it is argued that judgment of the lower Appellate Court is liable to be set aside and the lower Appellate Court be directed to dispose of the appeal based on the available materials. 9. The learned counsel for the first respondent has placed reliance on the decision in Shalimar Chemical Works Ltd. v. Surendra Oil and Dal Mills (Refineries) and Ors., (2010 (3) KLT Suppl. 116 (SC) ; ( (2010) 8 SCC 423 ) to contend that in the circumstance as in this case, it is within the power of the Appellate Court to receive additional evidence and if necessary, remand of case to the Trial Court for fresh decision. The learned counsel submitted that there was an inadvertent mistake on the part of the counsel in adducing proper evidence in the Trial Court. It is pointed out that original of Ext. B6 is in the custody of the bank and hence could not be produced. 10. The learned counsel submitted that there was an inadvertent mistake on the part of the counsel in adducing proper evidence in the Trial Court. It is pointed out that original of Ext. B6 is in the custody of the bank and hence could not be produced. 10. A distinction has to be drawn between Clauses (aa) and (b) of R. 27 of O.41 of the Code (See Manuel T. Paikaday v. Kerala State and Anr., (1969 KLT SN 32 (GNo. 63)). There, it is held that in cases where the Court finds that further evidence is required to render a fair and proper judgment, it is open to the Court to remand the case to the Trial Court even if the party requesting for remand was at fault. 11. In Federal Bank Ltd. v. V.M. Jog Engineering Ltd. and Ors. AIR 2000 SC 3166 ) it is held: "Power of the Appellate Court to order a remand under R. 23A of O.41 of the Code (incorporated by amendment Act 104 of 1976) is not inhibited by acts or omissions of the parties. It is not as if the power to remand under R. 23A of O.41 of the Code is circumscribed by the provisions of R. 27 of O.41 of the Code. Assuming that the imitations as argued by the learned counsel for the appellant would apply when a party requested to receive additional evidence in appeal, that does not affect the power of the Appellate Court to remand to permit the party concerned to adduce evidence in case it is found that such a course is necessary in the ends of justice. 12. In this case only a certified copy of settlement deed dated 28.8.2003 was produced by the first respondent in the Trial Court. It is shown that original of that document was in the custody of the bank. But it is not as if the first respondent could not move an application like I.A. No. 251 of 2013 in the Trial Court and summon the original document. Assuming that the original document was required to be retained by the bank it was possible to return it after the purpose was over. As the learned counsel for the appellant has submitted, a document the genuineness of which is disputed should not have been called for in the appeal. Execution of the settlement deed is disputed by the appellant. Assuming that the original document was required to be retained by the bank it was possible to return it after the purpose was over. As the learned counsel for the appellant has submitted, a document the genuineness of which is disputed should not have been called for in the appeal. Execution of the settlement deed is disputed by the appellant. If execution of that document is denied, it could have been proved only as provided under Section 68 of the Act. The Trial Court was not correct in allowing its certified copy to be marked in evidence. At any rate that does not amount to proof of execution of the document. Also the First Appellate Court was not right in allowing I.A. Nos. 250 and 251 of 2013. 13. But I do not find reason to interfere with the order of remand passed by the lower Appellate Court For, Ext. B6 though a certified copy of the settlement deed was allowed to be marked in evidence overruling the objection raised by the appellant. May be, the first respondent was carried away by the impression that the document is admitted in evidence and that is sufficient. In such a situation, I am inclined to think that the lower Appellate Court was right in giving the first respondent an opportunity to prove the document as provided under the law. But the order allowing I.A. Nos. 250 and 251 of 2013 has to go. It is open to the first respondent to move appropriate application in the Trial Court. 14. Crucial question in this case is due execution of the settlement deed dated 28.8.2003. Burden of proving its execution is on the first respondent who wants to rely on the said document. Hence it is open to the first respondent to adduce further evidence as regards execution of the settlement deed as provided under the law and after such evidence is over, opportunity has to be given to the appellant to adduce rebutted evidence if any. 15. The substantial questions of law framed are answered accordingly. Resultantly, the appeal is disposed of as under: (1) Orders passed by the learned Additional District Judge, Ottapalam on I.A. Nos. 250 and 251 of 2013 in A.S. No. 30 of 2012 are set aside. (2) There is however no interference with the order of remand in A.S. No. 30 of 2012. Resultantly, the appeal is disposed of as under: (1) Orders passed by the learned Additional District Judge, Ottapalam on I.A. Nos. 250 and 251 of 2013 in A.S. No. 30 of 2012 are set aside. (2) There is however no interference with the order of remand in A.S. No. 30 of 2012. (3) Parties shall suffer their cost in this appeal.