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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.      14055 OF 2015 (Arising out of S.L.P. (C) No. 7798 of 2015)

A. Andisamy Chettiar … Appellant

Versus

A. Subburaj Chettiar …Respondent

J U D G M E N T

Prafulla C. Pant, J.

This appeal is directed against order dated 07.11.2014,

passed  by  the  High  Court  of  Judicature  at  Madras,  Bench

Madurai, in Civil Revision Petition (PD) (MD) No. 1787 of 2008

whereby the revision was allowed, and order dated 12.03.2008

passed by Subordinate Judge, Virudhunagar, on I.A. No. 3 of

2008 (in A.S. No. 55 of 2007), is set aside.

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2. We  have  heard  learned  counsel  for  the  parties  and

perused the papers on record.

3. Succinctly  stated,  facts  of  this  case  are  that  the

appellant/plaintiff  instituted  Original  Suit  No.  92  of  2003

before  District  Munsif,  Virudhunagar,  for  permanent

injunction  restraining  the  defendant  from interfering  in  his

peaceful possession and enjoyment of the property in suit.  It

is pleaded in the plaint that originally the property in dispute

was  owned  by  one  Gopalsamy  Pillai.   On  21.08.1963

Gopalsamy Pillai transferred the property by executing a sale

deed in favour of one Lakshmiammal.  Lakshmiammal further

transferred the property to Gurusamy Naicker through deed

dated  26.12.1968.   Plaintiff’s  father  Ayyappan  Chettiar

purchased  the  property  from  Gurusamy  Naicker,  and

constructed his house.  It is further pleaded that Ayyappan

Chettiar  executed  Will  dated  13.12.1990  in  favour  of  the

plaintiff, and after death of his father in 1997, the plaintiff is

in  exclusive  possession  of  the  property.   Alleging  that  the

defendant  has no right  over  the disputed property,  relief  of

permanent  injunction  against  him  is  sought  in  the  suit.

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Plaintiff Andisamy Chettiar and defendant Subburaj Chettiar

are sons of Ayyappan Chettiar.   

4. The defendant filed his written statement and contested

the  suit.   It  is  not  disputed  in  the  written  statement  that

Ayyappan  Chettiar,  who  purchased  the  property  from

Gurusamy  Naicker,  died  on  12.10.1997.   However,  it  is

disputed  that  Ayyappan  Chettiar  executed  Will  dated

13.12.1990,  relied  by  the  plaintiff.   It  is  alleged  by  the

defendant  that  the  plaintiff  has  filed  suit  for  permanent

injunction only to evade partition of the property.  It is also

pleaded by the defendant that apart from two sons, Ayyappan

Chettiar  had  three  daughters,  namely,  Lakshmi,  Avudaithai

and Andal.   Lakshmi and Andal  died intestate  leaving legal

heirs,  as  such,  suit  is  bad  for  non-joinder  of  remaining

daughter of Ayyappan Chettiar and legal heirs of pre-deceased

daughters.

5. On the basis of pleadings of the parties following issues

were framed by the trial court: -

(i) Whether Ayyappan Chettiar executed a Will in favour of

the plaintiff in respect of the property in suit?

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(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.

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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 following prayer: -

“Therefore it is just and necessary that this Hon’ble Court  be  graciously  pleased  to  direct  a  scientific investigation to  find out  whether  the  signature  of Ayyappan Chettiar, my father in Ex. A-4 is genuine by comparing the signature of Ayyappan Chettiar, in Ex. A-4 with his admitted signatures in Ex. B-1 to  B-3,  by  a  competent  hand-writing  expert,  and further direct him to file a report to the scientific investigation  done  by  him  and  justice  thus rendered.”

9. The first  appellate  court,  vide  order  dated 12.03.2008,

allowed the I.A. No. 3 of 2008, and directed the appellant to

deposit a sum of Rs.5000/- as fee.

10. The defendant challenged the order passed by the first

appellate  court,  allowing  the  application  for  additional

evidence, before the High Court in Civil Revision Petition (PD)

(MD) No. 1787 of 2008, which is allowed by said court by the

impugned order assailed before us.

11. Under the scheme of Code of Civil Procedure, 1908 (for

short “the Code”) whether oral or documentary, it is the trial

court  before  whom  parties  are  required  to  adduce  their

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evidence.  But in three exceptional circumstances additional

evidence  can  be  adduced  before  the  appellate  court,  as

provided under S. 107(1)(d) read with Rule 27 of Order XLI of

the Code.  Rule 27 of Order XLI reads as under: -

“27.  Production  of  additional  evidence  in Appellate Court. – (1) The parties to an appeal shall not  be  entitled  to  produce  additional  evidence, whether  oral  or  documentary,  in  the  Appellate Court.  But if –  

(a) The  Court  from  whose  decree  the  appeal  is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the  party  seeking  to  produce  additional evidence, establishes that notwithstanding the exercise  of  due diligence,  such evidence  was not  within his  knowledge  or  could  not,  after the exercise of due diligence, be produced by him  at  the  time  when  the  decree  appealed against was passed, or

(b) The Appellate Court requires any document to be produced or any witness to be examined to enable  it  to  pronounce  judgment,  or  for  any other substantial cause,

The  Appellate  Court  may  allow  such  evidence  or document  to  be  produced,  or  witness  to  be examined.

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(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”

                                               (emphasis supplied)

12.   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.

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13. In K.R. Mohan Reddy v. Net Work Inc.1, 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  justice  between  the  parties.  The ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the court. But mere difficulty is not sufficient to issue such direction…...”

14. In North Eastern Railway Admn. v. Bhagwan Das2,  

this Court observed thus: -  

“13. Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral  or  documentary  is  not  admitted  but  Section 107  CPC,  which  carves  out  an  exception  to  the general  rule,  enables  an  appellate  court  to  take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under  Order  41  Rule  27  CPC.  Nevertheless,  the additional evidence can be admitted only when the circumstances  as  stipulated  in  the  said  Rule  are found to exist…..…”

1 (2007) 14 SCC 257  2 (2008) 8 SCC 511

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15. In N. Kamalam (dead) and another v. Ayyasamy and

another3, this Court, interpreting Rule 27 of Order XLI of the

Code, has observed in para 19 as under: -

“……. the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal – it does not authorize any lacunae or gaps in the evidence to be filled up.  The authority  and  jurisdiction  as  conferred  on  to  the appellate court to let in fresh evidence is restricted to the purpose of pronouncement of judgment in a particular way.”

16. In Union of India v. Ibrahim Uddin and another4, this

Court has held as under: -

“49. An application under Order 41 Rule 27 CPC is to be considered at the time of hearing of appeal on merits  so as  to  find  out  whether  the  documents and/or the evidence sought to be adduced have any relevance/bearing  on  the  issues  involved.  The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it  depends upon whether or not the appellate court requires the evidence sought to be adduced to enable it  to pronounce judgment or for  any other substantial  cause.  The  true  test,  therefore  is, whether  the  appellate  court  is  able  to  pronounce judgment on the materials before it without taking

3 (2001) 7 SCC 503 4 (2012) 8 SCC 148

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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 others  v.

Naresh  Chandra  and  another5,  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  Issur v.  G.I.P.  Rly.  [ILR (1907-08)  31  Bom  381].   It  is  under  these circumstances  such  a  power  could  be  exercised.

5 (2001) 1 SCC 309

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Therefore, when the first appellate court did not find the  necessity  to  allow  the  application,  we  fail  to understand  as  to  how  the  High  Court  could,  in exercise of its power under Section 115 CPC, have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the  circumstances  when  the  appellate  court requires such evidence to pronounce the judgment the necessity to adduce additional  evidence would arise and not in any other circumstances. When the first  appellate  court  passed  the  order  on  the application filed under Order 41 Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional  evidence was not required, we fail to understand as to how the High Court  could  interfere  with  such  an  order  under Section 115 CPC.”

19. In  Gurdev  Singh  and  others  v.  Mehnga  Ram  and

another6, this Court, on similar issue, has expressed the view

as under: -

“We have heard learned counsel for the parties. The grievance of the appellants before us is that in an appeal filed by them before the learned Additional District Judge, Ferozepur, in an application under Order XLI, Rule 27(b), Code of Civil Procedure (CPC) the  learned  Additional  District  Judge  at  the  final hearing  of  the  appeal  wrongly  felt  that  additional evidence was required to be produced as requested by  the  appellants  by  way  of  examination  of  a handwriting  expert.  The  High  Court  in  the impugned  order  exercising  jurisdiction  under Section 115 CPC took the view that the order of the appellate court could not be sustained. In our view the approach of the High Court in revision at that

6 (1997) 6 SCC 507

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interim stage when the appeal was pending for final hearing before the learned Additional District Judge was  not  justified  and  the  High  Court  should  not have interfered with the order which was within the jurisdiction  of  the  appellate  court.  The  reason  is obvious.  The  appellate  court  hearing  the  matter finally  could  exercise  jurisdiction  one  way  or  the other under Order XLI, Rule 27 specially clause (b). If the order was wrong on merits, it would always be open for  the respondent to challenge the same in accordance with law if 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

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regarding  principles  on  which  such  an  application  can  be

allowed or rejected.  We order accordingly.  We further clarify

that we have not expressed any opinion as to the merits of the

case.  Accordingly, the appeal is disposed of.  No order as to

costs.

………………….....…………J.          [Dipak Misra]

     .………………….……………J.               [Prafulla C. Pant]

New Delhi; December 08, 2015.