TMI Blog2015 (12) TMI 1853X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 regarding principles on which such an application can be allowed or rejected. It is deemed 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 regarding principles on which such an application can be allowed or rejected - appeal disposed off. - Civil Appeal No. 14055 of 2015 (Arising out of S.L.P. (C) No. 7798 of 2015) - - - Dated:- 8-12-2015 - Dipak Misra And Prafulla C. Pant, JJ. For the Appellant : S. Nandakumar, Parivesh Singh, M. Soundarasaran Kumar, P. Srinivasan, Ranjeet Singh and Naresh Kumar, Advs. JUDGMENT Prafulla C. Pant, J. 1. This appeal is directed against order dated 07.11.2014, passed by the High Court of Judicature at Madras, Bench M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property in suit? (ii) Whether the Plaintiff is entitled to the relief of permanent injunction? (iii) To what other relief, if any, the Plaintiff is entitled? 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 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. 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 follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... From the opening words of Sub-rule (1) of Rule 27, 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 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. 13. In K.R. Mohan Reddy v. Net Work Inc. : (2007) 14 SCC 257, this Court has held as under: 19. The appellate court should not pass an order so as to patch up the weakness of the evidence of the unsuccessful party before the trial court, but it will be different if the court itself requires the evidence to do justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment on the materials before it without taking into consideration the additional evidence sought to be adduced.... 17. Learned Counsel for the Appellant argued before us that the High Court, in revision, at an interim stage of appeal pending before the lower appellate court, should not have 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 Ors. v. Naresh Chandra and Anr. : (2001) 1 SCC 309, 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 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an occasion arises to carry the matter in second appeal after an appellate decree is passed. But at this interim stage, the High Court should not have felt itself convinced that the order was without jurisdiction. Only on this short question, without expressing any opinion on the merits of the controversy involved and on the legality of the contentions advanced by both the learned Counsel for the parties regarding additional evidence, we allow this appeal, set aside the order of the High Court. 20. In view of the law laid down by this Court, as discussed above, regarding exercise of revisional powers in the matter of 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 regarding principles on which such an application can be allowed or rejected. We order accordingly. We further clarify that we have not expressed any opin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
