S. GULAB MAIDEEN Vs. ANTHONY SELVAM

JUDGEMENT

(1.) THE plaintiff, who succeeded in the trial Court but lost the case in the appeal before the lower appellate Court, is the appellant in the second appeal. He filed the original suit for bare injunction. In the trial, four witnesses were examined as Pws 1 to 4 and 20 documents were marked as Exs. A1 to A20 on the side of the appellant herein/plaintiff. On the side of the respondent herein/defendant, he alone figured as the sole witness (DW1) and two documents were marked as Exs. B1 and B2. The report of the Commissioner and the plan submitted by the Commissioner appointed by the trial Court were marked as Court documents Exs. C1 and C2.

(2.) THE learned trial Judge, after considering the evidence, chose to grant the decree as prayed for by a judgment and decree dated 05.12.2005. Aggrieved by the same, the respondent herein/defendant preferred an appeal before the lower appellate Court (Sub -Court, Nagapattinam) in A.S. No. 17 of 2006. The learned lower appellate Judge seems to have allowed the marking of five more documents on the side of the respondent herein/defendant in the appellate Court and marked them as Exs. B3 to B7. Relying on those documents and reading them into evidence, the learned lower appellate Judge chose to allow the appeal and set aside the decree passed by the trial Court and dismissed the suit holding that the appellant herein/plaintiff was not entitled to the relief sought for. The said decree of the lower appellate Court dated 28.04.2006 is the subject matter of challenge in the second appeal. The appeal came to be admitted on 23.03.2007 identifying the following to be the substantial question of law involved in the second appeal:

(3.) IN the case on hand, though the above question alone was formulated as the substantial question of law, at the time of hearing of the second appeal, the learned counsel for the appellant seeks the leave the Court to raise an additional substantial question of law regarding the propriety of the lower appellate Court marking the documents produced by the respondent/defendant in the appeal without following the procedure contemplated under Order XLI Rule 27 and 28 of the Code of Civil Procedure. Hence, leave is granted and the additional substantial question of law is formulated as follows: