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2017 DIGILAW 1235 (MAD)

A. Meiazhagan v. Mangayarkkarasi

2017-04-25

N.SATHISH KUMAR

body2017
JUDGMENT : This appeal has been filed by the second defendant challenging the ex parte decree dated 28.01.2011 passed in O.S.No.116 of 2009 against the defendants. The parties are arrayed as per their own ranking before the trial Court for the sake of convenience. 2. Brief facts leading to filing of this appeal are:- The suit was laid by one of the daughters of Aranganathan, against her mother, sisters and brothers, claiming 1/5th share in the suit property. It is the case of the plaintiff that her father had purchased the suit property on 10.5.1958 and he died intestate on 2.1.1974 leaving behind him the plaintiff and defendants 1 to 4 as legal heirs. The 5th defendant is the wife of the third defendant and defendants 6 to 9 are their children. In spite of repeated demands made by the plaintiff for partition the defendants are not amenable for amicable division and they are simply evading and postponing. Hence she issued a legal notice to the defendants on 1.5.2007 demanding partition of her share. Though the defendants 1, 4, 6 and 7 received the notice did not send any reply. The other defendants returned the notice as not claimed. Hence, she has filed the above suit for preliminary decree for partition and allot 1/5th share in the suit property. 3. Though the suit was filed in the year 2009 except 6th defendant others were ex parte on various stages of the suit. The 6th defendant represented by the counsel was also called absent on 25.1.2011. The defendants called absent and set ex parte. 4. On the basis of the pleadings of the plaintiff, the learned trial Court has framed the following issues:- 1. Whether the plaintiff is entitled to a decree for partition as prayed for? 2. To what relief the plaintiff is entitled? 5. The plaintiff examined herself as P.W.1 and marked Exhibits A1 to A12. Learned trial Court considering the Ex.A1 sale deed dated 10.05.1958 executed by one S.Govindan in favour of K.Aranganathan, father of the plaintiff and also Ex.A2 legal notice dated 01.05.2007 issued by the plaintiff and her evidence, passed a preliminary decree for partition of the suit property into 5 equal shares and allotted 1/5th share to the plaintiff. Learned trial Court considering the Ex.A1 sale deed dated 10.05.1958 executed by one S.Govindan in favour of K.Aranganathan, father of the plaintiff and also Ex.A2 legal notice dated 01.05.2007 issued by the plaintiff and her evidence, passed a preliminary decree for partition of the suit property into 5 equal shares and allotted 1/5th share to the plaintiff. As against the preliminary decree the appeal came to be filed by the second defendant on the ground that admittedly the plaintiff and the defendant being Hindu, belong to Mitakshara School, after the death of the appellant's father on 02.01.1974, much prior to the Tamil Nadu amendment Act,1989 and the Central Amendment in the year 2004, in Hindu Succession Act came into force, his property become coparcenary property in the hands of his sons and their respective male issues and as such, the plaintiff is not entitled to claim any share over the suit property as coparcenar and the amended Act does not confer any right on her. 6. In the appeal the appellant has filed C.M.P.No.19519 of 2016 to raise additional grounds, stating that the suit property was acquired out of the sale of the ancestral property dated 29.5.1958. As the plaintiff was not a coparcenar at the relevant time, she is not entitled to any share in the suit property. 7. Apart from the above application, an application under Order 41 Rule 27 is also filed by the appellant for reception of additional documents in C.M.P.No.19518 of 2016. In the above application it is the case of the petitioner that the properties are ancestral properties of Aranganathan and the plaintiff was married long back and get separated from the family as early as 1984. As the appellant has not availed the benefit of producing the documents before the trial Court, he has filed this application for reception of 8 additional documents namely original tax receipt of the appellant dated 16.05.1997, certified copy of sale deed dated 22.5.1958 as additional evidence in the appeal stage to show that ancestral property was sold in the year 1958 and his father had mortgaged the same property in the year 1961, one of the properties was sold in the year 1976 for the marriage expenses of the 4th and 1st defendants. 8. 8. Learned counsel for the appellant submitted that though he has filed the appeal challenging the ex parte decree, as he has right to challenge the ex parte decree by way of appeal, he is also entitled to file application under Order 41 Rule 27 of Civil Procedure Code to adduce additional evidence. It is the contention of the learned counsel that once the document is received in evidence, the trial Court judgment requires to be set aside. Hence in his vehement contention the learned counsel for the appellant submitted that he is entitled to file additional documents in the appeal filed against the ex parte decree. Hence prayed for allowing the appeal besides allowing the additional grounds of appeal. 9. Learned counsel appearing for the Respondents submitted that having filed the appeal challenging the ex parte decree without exhausting the alternative remedy under Order 9 Rule 13 of C.P.C., the appellant at the most can only attack the ex parte decree on merits alone, beyond that he cannot introduce new facts in the appellate stage. It is further contention of the learned counsel for the appellant that the suit is of the year 2009 and the ex parte decree was passed in the year 2011, the application has been filed belatedly without any pleadings whatsoever made before the trial Court. Therefore, the additional documents sought to be filed cannot be received in evidence and the appellant has made such an application belatedly even during this appeal. Therefore, it is the contention of the learned counsel that receiving additional documents at the appellate stage without any pleadings in fact will defeat the very purpose of the Act itself and encourage the litigation before the appellate Courts. Hence prayed for dismissal of the appeal as well as the application for reception of additional documents. 10. In the light of the above submissions now the points that arise for consideration are:- 1. Whether the appellant is entitled to adduce additional evidence in the appeal which was filed against the ex parte decree passed against him that too without any pleadings? 2. Whether the appellant can go beyond the merits of the ex parte decree to canvass his case before this Court? 3. Whether the judgment of the trial Court is not based on the proper appreciation of evidence and law? 4. To what relief? 11. 2. Whether the appellant can go beyond the merits of the ex parte decree to canvass his case before this Court? 3. Whether the judgment of the trial Court is not based on the proper appreciation of evidence and law? 4. To what relief? 11. Point No.1:- The application under Order 41 Rule 27 of Civil Procedure Code has been filed by the appellant to contend that the suit property was purchased out of sale proceeds from the sale of ancestral property. Therefore, the plaintiff is not entitled to any share in the suit property and hence the decree and judgment of the learned trial Court determining 1/5th share to the plaintiff is not maintainable in law. It is to be noted that to receive additional documents in the appellate stage it must be established 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; that he was prevented by the Court from filing the document or refused to receive the same by the Court. Only on satisfying the above conditions the reception of additional documents is normally allowed in the appellate stage. Merely because the provision is made under Order 41 Rule 27 the litigant cannot take it as granted as his right to file additional documents at any stage of proceedings without establishing due diligence on his part. 12. On a perusal of the lower Court records it could be seen that in the year 2009 itself summons were served on him and other parties also remained ex parte and one of the defendants namely 6th defendant was represented by the counsel for some time till 2011. Notice was served on the appellant in Interlocutory Application stage itself. Thereafter, suit summons also served, but the appellant remained ex parte and not taken any steps to contest the suit on merits. There was no pleadings on the side of the appellant before the trial Court. Therefore, any evidence which is received as additional evidence in the appeal stage cannot be looked into without any pleadings in that regard. Therefore, this Court is of the view that reception of additional documents at the appeal stage cannot be filed as a matter of right. 13. Therefore, any evidence which is received as additional evidence in the appeal stage cannot be looked into without any pleadings in that regard. Therefore, this Court is of the view that reception of additional documents at the appeal stage cannot be filed as a matter of right. 13. In this regard the judgment reported in Union Of India vs. Ibrahim Uddin & Anr (2012) 8 SCC 148 , the Hon'ble Supreme Court in para 36 to 40 after extensively dealt with the right of the party to adduce evidence or receive any evidence and finally the Apex Court has concluded that application for taking additional evidence on record at belated stage cannot be filed as a matter of right held as follows:- “36. The general principle is that the Appellate Court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order XLI Rule 27 CPC enables the Appellate Court to take additional evidence in exceptional circumstances. The Appellate Court may permit additional evidence only and only if the conditions laid down in this rule are found to exist. The parties are not entitled, as of right, to the admission of such evidence. Thus, provision does not apply, when on the basis of evidence on record, the Appellate Court can pronounce a satisfactory judgment. The matter is entirely within the discretion of the court and is to be used sparingly. Such a discretion is only a judicial discretion circumscribed by the limitation specified in the rule itself. (Vide: K. Venkataramiah v. A. Seetharama Reddy & Ors., AIR 1963 SC 1526 ; The Municipal Corporation of Greater Bombay v. Lala Pancham & Ors., AIR 1965 SC 1008 ; Soonda Ram & Anr. v. Rameshwaralal & Anr., AIR 1975 SC 479 ; and Syed Abdul Khader v. Rami Reddy & Ors., AIR 1979 SC 553 ). 37. The Appellate Court should not, ordinarily allow new evidence to be adduced in order to enable a party to raise a new point in appeal. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. Similarly, where a party on whom the onus of proving a certain point lies fails to discharge the onus, he is not entitled to a fresh opportunity to produce evidence, as the Court can, in such a case, pronounce judgment against him and does not require any additional evidence to enable it to pronounce judgment. (Vide: Haji Mohammed Ishaq Wd. S. K. Mohammed & Ors. v. Mohamed Iqbal and Mohamed Ali and Co., AIR 1978 SC 798 ). 38. Under Order XLI, Rule 27 CPC, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. [Vide: Lala Pancham & Ors. (supra)]. 39. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the non- production of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 ; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101 ). 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. 40. The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.” 14. Admittedly, in this case, this application is filed only in the year 2016, even though the Appeal was filed in the year 2013, The conduct of the appellant in filing this application belatedly without proving due diligence show by him as a matter of right these documents cannot be received in evidence. Further, without any pleadings before the trial Court reception of the documents in the appeal stage will not help the appellant in any manner. 15. Though in one of the Judgments reported in Jaipur Development Authority v. Kailashwati Devi [1997 7 SCC 277] the Hon'ble Supreme Court has held that even without adducing any evidence in the trial Court in appeal such documents can be received as additional evidence, even in para 6 of the of the above judgment though the Apex Court has held that there was no necessity for the party to produce some evidence in the trial Court to exercise his right to file an additional document in the appeal stage. But the Hon'ble Supreme Court has put a clear rider to file such documents. The conditions mentioned in the Order 41 Rule 27 of CPC has to be strictly complied. Unless conditions set out under Order 41 Rule 27 is strictly complied as a matter of right additional documents cannot be received in evidence. 16. Similarly, in Judgment reported in Vimalammal v. Duraisamy Naidu 2003-3 - L.W. 613, this Court has held that filing of the application under O.41 R.27 to receive the written statement in the appellate court by 3rd defendant is a course unknown to law. 17. In Bachhaj Nahar vs. Nilima Mandal (2008)17 SCC 491 , the Apex Court in para 13 and 17 has held as follows:- “13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. 17. In Bachhaj Nahar vs. Nilima Mandal (2008)17 SCC 491 , the Apex Court in para 13 and 17 has held as follows:- “13. The object of issues is to identify from the pleadings the questions or points required to be decided by the courts so as to enable parties to let in evidence thereon. When the facts necessary to make out a particular claim, or to seek a particular relief, are not found in the plaint, the court cannot focus the attention of the parties, or its own attention on that claim or relief, by framing an appropriate issue. As a result the defendant does not get an opportunity to place the facts and contentions necessary to repudiate or challenge such a claim or relief. Therefore, the court cannot, on finding that the plaintiff has not made out the case put forth by him, grant some other relief. The question before a court is not whether there is some material on the basis of which some relief can be granted. The question is whether any relief can be granted, when the defendant had no opportunity to show that the relief proposed by the court could not be granted. When there is no prayer for a particular relief and no pleadings to support such a relief, and when defendant has no opportunity to resist or oppose such a relief, if the court considers and grants such a relief, it will lead to miscarriage of justice. Thus it is said that no amount of evidence, on a plea that is not put forward in the pleadings, can be looked into to grant any relief. 17. It is thus clear that a case not specifically pleaded can be considered by the court only where the pleadings in substance, though not in specific terms, contains the necessary averments to make out a particular case and the issues framed also generally cover the question involved and the parties proceed on the basis that such case was at issue and had led evidence thereon. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. As the very requirements indicate, this should be only in exceptional cases where the court is fully satisfied that the pleadings and issues generally cover the case subsequently put forward and that the parties being conscious of the issue, had led evidence on such issue. But where the court is not satisfied that such case was at issue, the question of resorting to the exception to the general rule does not arise. The principles laid down in Bhagwati Prasad and Ram Sarup Gupta (supra) referred to above and several other decisions of this Court following the same cannot be construed as diluting the well settled principle that without pleadings and issues, evidence cannot be considered to make out a new case which is not pleaded. Another aspect to be noticed, is that the court can consider such a case not specifically pleaded, only when one of the parties raises the same at the stage of arguments by contending that the pleadings and issues are sufficient to make out a particular case and that the parties proceeded on that basis and had led evidence on that case. Where neither party puts forth such a contention, the court cannot obviously make out such a case not pleaded, suo moto.” From the above judgment it is very clear that no amount of evidence, or plea that has not been put forward on the pleadings can be looked into. From the above judgment it is also more important that without any pleadings before the trial Court, the documents cannot be received in evidence. Therefore, this Court is of the view that without resorting the provision under Order 9 Rule 13 by showing sufficient cause to set ex parte decree as against the appellant the appellant cannot take recourse under Order 41 Rule 27 to introduce evidence without any pleadings before trial Court. Accordingly, this point is answered. 18. Point Nos.2 to 4:- With regard to the additional grounds raised in the C.M.P. No. 19519 of 2016, it is to be noted that the appellant has just raised some of the additional grounds in the appeal without any pleadings either in the plaint or in the written statement. The pleadings of the parties must be strictly in compliance under Order 6 of the CPC. The pleadings shall mean only the plaint or written statement as per Order 6 of the CPC. The pleadings of the parties must be strictly in compliance under Order 6 of the CPC. The pleadings shall mean only the plaint or written statement as per Order 6 of the CPC. Therefore, in the appeal stage by way of affidavit, pleadings either in the plaint or in the written statement cannot be substituted. Therefore, such application is also not maintainable. The purpose of the pleading is to make other side aware of the facts to meet out the same in the trial. Without availing opportunity to make pleadings in the trial Court, now the appellant cannot deviate the provision of law and substitute pleadings in the appeal stage by way of affidavit. 19. On a careful perusal of the decree and judgment of the learned trial Court, the appellant and others despite of service of summons not appeared before the trial Court. The main case of the plaintiff is that the suit property itself was purchased by her father in the year 1958 and he died intestate in the year 1974 leaving behind his children and wife. According to the plaintiff she is entitled to 1/5th share as Class I legal heirs of her father. In this regard she has also issued a legal notice to other legal heirs which was also received by them, but they have not chosen to reply the said notice. Only on the strength of the sale deed in the name of her father she claims 1/5th share in the properties. After the defendants were set ex parte the plaintiff examined herself as P.W.1 and on her side Ex.A1 to A12 were marked. The learned trial Court on considering her evidence and also satisfying the fact that the suit property was purchased under Ex.A1 sale deed of the year 1958, has rightly found that the plaintiff is entitled to 1/5th share in the property of her father. Therefore, having filed the appeal as against the ex parte decree, now the appellant has to confine his arguments and challenge only as against the merits of the ex parte decree, he cannot travel beyond the merits of the ex parte decree. Before this Court, the learned counsel appearing for the appellant could not make out any ground to attack the judgment passed by the learned trial Court on merits. Before this Court, the learned counsel appearing for the appellant could not make out any ground to attack the judgment passed by the learned trial Court on merits. The main argument before this Court was focused on the point that the appellant is entitled to file additional documents itself. 20. It is to be noted that in this regard a judgment reported in Bhanu Kumar Jain vs. Archana Kumar (2005) 1 SCC 787 the Hon'ble Supreme Court in para 38 held as follows:- “The dichotomy, in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex-parte hearing by the Trial Court and/ or existence of a sufficient case for non-appearance of the defendant before it, it would be open to him to argue in the First Appeal filed by him against Section 96(2) of the Code on the merit of the suit so as to enable him to contend that the materials brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the court can also be a possible plea in such an appeal. We, however, agree with Mr. Choudhari that the 'Explanation' appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this court in Rani Choudhury (supra), P. Kiran Kumar (supra) and Shyam Sundar Sarma Vs. Pannalal Jaiswal and Others [ 2004 (9) SCALE 270 ].” The above judgment clearly show that except challenging the merits of the ex parte decree the appellant cannot canvass beyond the same. 21. On perusal of the entire records and also considering the submissions of the learned counsel for the appellant, the appellant could not make out any ground to interfere with the judgment of the trial Court. The trial Court judgment itself clearly show that judgment is not only based on oral evidence but also documents. Therefore, the appellant having failed to avail the opportunity provided under Order 9 Rule 13 to set aside the ex parte decree and also failed to avail the opportunities to raise appropriate pleadings before the learned trial Court, he cannot canvass new case before the appellate Court, without any pleadings on his behalf before the trial Court. Therefore, the appellant having failed to avail the opportunity provided under Order 9 Rule 13 to set aside the ex parte decree and also failed to avail the opportunities to raise appropriate pleadings before the learned trial Court, he cannot canvass new case before the appellate Court, without any pleadings on his behalf before the trial Court. The points are answered accordingly. 22. In the result, the appeal is dismissed confirming the judgment and decree of the learned trial Court. No costs. Consequently, C.M.P.No.18573 of 2016 is closed. 23. C.M.P. No. 19518 of 2016 filed by the appellant for reception of additional documents and C.M.P.No.19519 to raise additional grounds are also dismissed. No costs.