BALAKRISHNAN AND ORS. Vs. ARULMIGHU SRINIVASA PERUMAL TEMPLE

JUDGEMENT

(1.) THE defendant, who suffered a decree for ejectment in the trial Court, which was confirmed by the lower appellate, is the appellant in the second appeal. The plaintiff, who is the respondent in the second appeal, is a temple represented by its Executive Officer. After the filing of the second appeal, the sole appellant T. Balakrishnan passed away and his legal representatives have got themselves impleaded as appellants 2 to 4. For the sake of convenience, the parties are referred to in accordance with their rankings in the trial Court. At appropriate places the ranks of the parties in the second appeal shall also be referred to.

(2.) THE second appeal came admitted on 05.11.2007 formulating the following three questions to be the substantial questions of law involved in the second appeal;

(3.) IN the second appeal, the appellants have chosen to prefer a miscellaneous petition in M.P. No. 3 of 2007 under order XLI Rule 27 CPC for reception of additional documentary evidence. But, the petition does not contain any list of documents, which are sought to be produced as additional documentary evidence. Nor does the affidavit filed in support of the petition contain such a list. However, the learned counsel for the appellants would submit that the documents sought to be produced as additional documentary evidence are Statement of Accounts obtained from the banker of the defendant to show payments made towards rent. The reason for the failure on the part of the deceased first appellant/defendant to produce those documents either before the trial Court or before the lower appellate Court has not been stated. The dates of the documents have also not been furnished. If the dates have been furnished, there may be a chance of contending that the document could not have been obtained by the appellants when the matter was pending before the trial Court or before the lower appellate Court and that the same necessitated the filing of such a petition before this Court in the second appeal. Even if it is assumed that those documents could have come into existence after the disposal of the first appeal by the lower appellate Court, the appellants have not proved that the documents would be of such a nature that the same will tilt the balance and enable the court to pronounce judgment. As pointed out supra, evidence of payment of amount towards rent alone shall not be enough to show that a fresh tenancy was created or the defendant was recognized as a tenant holding over, especially in the absence of receipts without any indication that the amount was received without prejudice. The appellants have miserably failed to bring their case within the ambit of Order XLI Ruled 27 CPC and hence, the M.P. No. 3 of 2007 deserves to be dismissed.