THIRUVENKADAM Vs. SAROJA

JUDGEMENT

(1.) THE petitioner is the second defendant and appellant before the learned Principal Sub Judge, Erode in A. S. No. 121 of 2007. He filed an application in I. A. No. 345 of 2008 under Order 41 Rule 27 C. P. C. requesting the court to receive the partition deed dated 20. 06. 1959 as additional evidence and the court, on 28. 07. 2008 closed the petition by observing that the appeal was ready for arguments. Aggrieved by this order, the petitioner has approached this court. The appellate court has not mentioned anything with regard to the merits of the Interlocutory Application and the document filed along with it, but, passed a single line order that the petition could not be taken up since the appeal was ready for arguments. In law, it is incumbent upon the appellate court to hear the petition for receipt of additional evidence along with the appeal and failure of which would render injustice to the parties.

(2.) IT is required that the appellate court has to advert its concentration to the merits of the appeal and the features available in the additional document and to come to a conclusion whether the document could be received in additional evidence or not; provided, the person seeking the relief should comply with the requirements under Order 41 Rule 27 C. P. C. Without considering those aspects, merely closing the application is not appreciated.

(3.) LEARNED counsel for the petitioner would garner support from a decision of this court reported in 2001 (4) CTC 624 (Kumarasamy Mudaliar vs. Kuttiappa Mudaliar), wherein, it has been held that it is a well settled position of law that an application filed in the appeal for permission to adduce additional evidence has to be considered along with the main appeal and not separately and in this regard he also referred to another decision of this court reported in 1994 (2) L. W. 376 (Ayyasami, M. and another vs. S. P. Ganesan ). An identical proposition has been laid down in another decision of this court in 1998 (3) CTC 138 (S. Santhana Selvaraj vs. Jafferkhan and two others ).