S UMAPATHY Vs. ARUNACHALAM PATTANKATTIAR

JUDGEMENT

(1.) Aggrieved by the order of remand made by the Principal District Judge, Tirunelveli in A. S. No. 74 of 1997 remitting the matter to the trial Court for fresh disposal, the plaintiff has filed the present appeal. The appellant has filed O.S. 443/88 on the file of the Principal District Munsif, Tirunelveli for a declaration that the plaint schedule property is a "Common Mutham" belonging to him and the defendants. He also prayed for mandatory injunction directing the respondents to remove the walls put up by them in the plaint schedule. The trial Court after trial decreed the suit in favour of the plaintiff. The defendants filed A.S. 74/97 on the file of the Principal District Judge, Tirunelveli. The lower appellate Court after entertaining additional documents, remitted the matter to the trial Court for fresh disposal, against which the present Civil Miscellaneous Appeal has been filed.

(2.) When A.S. 74/97 is pending before the Principal District Court, Tirunelveli, the appellants therein, respondents herein, filed I.A. 102/99 for reception of certain documents as additional evidence under Order 41, Rule 27. On the basis of the said documents, it is stated that the suit property in T.S. No. 470 is not the "Common Mutham" and the defendants are entitled to east-west 27-7/8 (Vernacular matter omitted-Ed.) = 493/4' which is inclusive of T.S. No. 470. The reading of the Order of the lower Appellate Court shows that after perusing the documents, the learned District Judge remanded the matter to the trial Court for fresh consideration. Learned counsel appearing for the appellant would contend that for reception of certain documents, it would not be open to the appellate Court to remit the case to the trial Court and he also contended that the respondents herein failed to furnish any reason for not placing those documents at the appropriate stage, namely, before the trial Court. The learned counsel appearing for the respondents who has filed the Caveat would state that the learned appellate Judge constrained to remit the matter not only on the basis of certain documents placed by way of additional evidence, but also on considering the judgment and decree of the trial Court. After going through the judgment of the learned District Judge, I am unable to accept the said contention.

(3.) There is no dispute that even at the appellate stage, it is open to the parties to file a petition for reception of documents as additional evidence in support of their claim; accordingly the respondents herein/appellants before the lower appellate Court filed I.A. 102/99 to receive certain documents as additional evidence under Order 41, Rule 27. It is but proper for the Court that before entertaining those documents, the party or parties must satisfy that they could not place those documents at the appropriate stage, namely, before the trial Court and there must be a bona fide effort in not filing those documents before the trial Court. In any way, the learned District Judge failed to consider this aspect. It is settled law that unless there is acceptable reason for not placing the required documents at the appropriate stage, the parties cannot be permitted to place the documents as additional evidence at the appellate stage. The learned Judge has not considered this aspect and there is no finding or conclusion for reception of those documents at the appellate stage. Mr. K. Srinivasan, learned counsel appearing for the respondents has fairly stated that there is no such finding or conclusion by the learned District Judge. Without rendering a specific finding and reason for entertaining additional evidence, those documents cannot be looked into. Such recourse has not been followed by the lower appellate Court. In other words, the lower appellate Court failed to satisfy the condition prescribed for reception of additional evidence under Order 41, Rule 27 (1) (aa) and (2), CPC.