A. ANDISAMY CHETTIAR vs. A. SUBBURAJ CHETTIAR

Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 14055 OF 2015 (Arising out of S.L.P. (C) No. 7798 of 2015) A. Andisamy Chettiar … Appellant Versus A. Subburaj Chettiar …Respondent J U D G M E N T Prafulla C. Pant, J. JUDGMENT This appeal is directed against order dated 07.11.2014, passed by the High Court of Judicature at Madras, Bench Madurai, in Civil Revision Petition (PD) (MD) No. 1787 of 2008 whereby the revision was allowed, and order dated 12.03.2008 passed by Subordinate Judge, Virudhunagar, on I.A. No. 3 of 2008 (in A.S. No. 55 of 2007), is set aside. Page 1 Page 2 of 13 2. We have heard learned counsel for the parties and perused the papers on record. 3. Succinctly stated, facts of this case are that the

before District Munsif, Virudhunagar, for permanent injunction restraining the defendant from interfering in his peaceful possession and enjoyment of the property in suit. It is pleaded in the plaint that originally the property in dispute was owned by one Gopalsamy Pillai. On 21.08.1963 Gopalsamy Pillai transferred the property by executing a sale deed in favour of one Lakshmiammal. Lakshmiammal further transferred the property to Gurusamy Naicker through deed dated 26.12.1968. Plaintiff’s father Ayyappan Chettiar JUDGMENT purchased the property from Gurusamy Naicker, and constructed his house. It is further pleaded that Ayyappan Chettiar executed Will dated 13.12.1990 in favour of the plaintiff, and after death of his father in 1997, the plaintiff is in exclusive possession of the property. Alleging that the defendant has no right over the disputed property, relief of permanent injunction against him is sought in the suit. Page 2 Page 3 of 13 Plaintiff Andisamy Chettiar and defendant Subburaj Chettiar are sons of Ayyappan Chettiar. 4. The defendant filed his written statement and contested

Ayyappan Chettiar, who purchased the property from Gurusamy Naicker, died on 12.10.1997. However, it is disputed that Ayyappan Chettiar executed Will dated 13.12.1990, relied by the plaintiff. It is alleged by the defendant that the plaintiff has filed suit for permanent injunction only to evade partition of the property. It is also pleaded by the defendant that apart from two sons, Ayyappan Chettiar had three daughters, namely, Lakshmi, Avudaithai and Andal. Lakshmi and Andal died intestate leaving legal JUDGMENT heirs, as such, suit is bad for non-joinder of remaining daughter of Ayyappan Chettiar and legal heirs of pre-deceased daughters. 5. On the basis of pleadings of the parties following issues were framed by the trial court: - (i) Whether Ayyappan Chettiar executed a Will in favour of the plaintiff in respect of the property in suit? Page 3 Page 4 of 13 (ii) Whether the plaintiff is entitled to the relief of permanent injunction?

6. The plaintiff got examined himself as PW-1 Andisamy Chettiar and he also got examined PW-2 Selvarajan, stated to be attesting witness of the Will. Nine documents (including Will Ex.A-4) were filed by the plaintiff. On behalf of the defendant, he got himself examined as DW-1 Subburaj Chettiar, and filed three documents. The trial court, after hearing the parties, decided issue No. 1 against the plaintiff holding that the plaintiff failed to prove that Ayyappan Chettiar executed the Will relied on by him. On the basis of JUDGMENT finding on issue No. 1, issue Nos. 2 and 3 are also decided in favour of the defendant, and the suit was dismissed vide judgment and order dated 05.02.2007. 7. Aggrieved by the decree passed by the trial court, the plaintiff filed appeal (A.S. No. 55 of 2007) before the first appellate court, i.e. Subordinate Judge, Virudhunagar. Page 4 Page 5 of 13 8. During the pendency of A.S. No. 55 of 2007 before the first appellate court, an application (I.A. No. 3 of 2008) was moved on behalf of the plaintiff with following prayer: -

9. The first appellate court, vide order dated 12.03.2008, allowed the I.A. No. 3 of 2008, and directed the appellant to deposit a sum of Rs.5000/- as fee. 10. The defendant challenged the order passed by the first JUDGMENT appellate court, allowing the application for additional evidence, before the High Court in Civil Revision Petition (PD) (MD) No. 1787 of 2008, which is allowed by said court by the impugned order assailed before us. 11. Under the scheme of Code of Civil Procedure, 1908 (for short “the Code”) whether oral or documentary, it is the trial court before whom parties are required to adduce their Page 5 Page 6 of 13 evidence. But in three exceptional circumstances additional evidence can be adduced before the appellate court, as provided under S. 107(1)(d) read with Rule 27 of Order XLI of

JUDGMENT (b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, The Appellate Court may allow such evidence or document to be produced, or witness to be examined. Page 6 Page 7 of 13 (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” (emphasis supplied)

quoted above, it is clear that the parties are not entitled to produce additional evidence whether oral or documentary in the appellate court, but for the three situations mentioned above. The parties are not allowed to fill the lacunae at the appellate stage. It is against the spirit of the Code to allow a party to adduce additional evidence without fulfillment of either of the three conditions mentioned in Rule 27. In the case at hand, no application was moved before the trial court seeking scientific examination of the document (Ex.A-4), nor JUDGMENT can it be said that the plaintiff with due diligence could not have moved such an application to get proved the documents relied upon by him. Now it is to be seen whether the third condition, i.e. one contained in clause (b) of sub-rule (1) of Rule 27 is fulfilled or not. Page 7 Page 8 of 13 1 13. In K.R. Mohan Reddy v. Net Work Inc. , this Court has held as under: -

2 14. In North Eastern Railway Admn. v. Bhagwan Das , this Court observed thus: - “13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary is not admitted but Section 107 CPC, which carves out an exception to the general rule, enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 CPC. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist…..…” JUDGMENT 1 (2007) 14 SCC 257 2 (2008) 8 SCC 511 Page 8 Page 9 of 13 15. In N. Kamalam (dead) and another v. Ayyasamy and 3 another , this Court, interpreting Rule 27 of Order XLI of the Code, has observed in para 19 as under: -

4 16. In Union of India v. Ibrahim Uddin and another , this Court has held as under: - “ 49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find out whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is, whether the appellate court is able to pronounce judgment on the materials before it without taking JUDGMENT 3 (2001) 7 SCC 503 4 (2012) 8 SCC 148 Page 9 Page 10 of 13 into consideration the additional evidence sought to be adduced…………..” 17. Learned counsel for the appellant argued before us that

interfered in the matter of requirement of additional evidence. 18. We have considered the argument advanced on behalf of the appellant and also perused the law laid down by this Court as to the exercise of revisional power under Section 115 of the Code in such matters. In Mahavir Singh and others v. 5 Naresh Chandra and another , explaining the scope of revision in the matters of acceptance of additional evidence by the lower appellate court interpreting expression “or for any other substantial cause” in Rule 27 of Order XLI, this Court JUDGMENT has held as under: - “The words “or for any other substantial cause” must be read with the word “requires”, which is set out at the commencement of the provision, so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kessowji Issur v. G.I.P. Rly . [ILR (1907-08) 31 Bom 381]. It is under these circumstances such a power could be exercised. 5 (2001) 1 SCC 309 Page 10 Page 11 of 13

19. In Gurdev Singh and others v. Mehnga Ram and 6 another , this Court, on similar issue, has expressed the view as under: - “We have heard learned counsel for the parties. The grievance of the appellants before us is that in an appeal filed by them before the learned Additional District Judge, Ferozepur, in an application under Order XLI, Rule 27( b ), Code of Civil Procedure (CPC) the learned Additional District Judge at the final hearing of the appeal wrongly felt that additional evidence was required to be produced as requested by the appellants by way of examination of a handwriting expert. The High Court in the impugned order exercising jurisdiction under Section 115 CPC took the view that the order of the appellate court could not be sustained. In our view the approach of the High Court in revision at that JUDGMENT 6 (1997) 6 SCC 507 Page 11 Page 12 of 13

20. In view of the law laid down by this Court, as discussed above, regarding exercise of revisional powers in the matter of JUDGMENT allowing the application for additional evidence, when appeal is pending before the lower appellate court, the impugned order passed by the High Court cannot be upheld and the same is set aside. However, to do complete justice between the parties, we think it just and proper to direct the first appellate court to decide the application for additional evidence afresh in the light of observations made by this Court Page 12 Page 13 of 13 regarding principles on which such an application can be allowed or rejected. We order accordingly. We further clarify that we have not expressed any opinion as to the merits of the

costs. ………………….....…………J. [Dipak Misra] .………………….……………J. [Prafulla C. Pant] New Delhi; December 08, 2015. JUDGMENT Page 13