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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN
Madhavaperumal Devasthanam, Mylapore, Madras represented by Executed Officer
Versus
Tmt. Dhanlakshmi & Others
S.A. No. 1397 of 1986 & C.M.P. No. 8049 of 1996
Decided On :Decided On : 11-07-1996
CIVIL PROCEDURE - ADDITIONAL EVIDENCE - ADMISSIBILITY - SECOND APPEAL - DOCUMENTS FILED ALONG WITH APPLICATION TO ADMIT ADDITIONAL EVIDENCE - RELEVANCY - COURT'S DISCRETION - INTERESTS OF JUSTICE - REMAND OF MATTER.
Fact of the Case:
In a suit for declaration of ownership of land, the trial court dismissed the suit, while the lower appellate court held that the plaintiffs were the owners of the kudiwaram and the temple had no right but to collect quit rent and granted a decree in favor of the plaintiffs. The appellant, the temple, filed an application to admit additional evidence in the form of documents, which were apparently official in nature.
Finding of the Court:
The court held that the documents filed along with the application to admit additional evidence were relevant and necessary for deciding the question which arose for consideration in the proceedings. The court also found that further evidence was necessary for connecting the Collectors Certificates to the suit land and for the purpose of enabling the court to decide the effect of the entry found in the extract from the Madras Town Survey Register.
Issues: 1. Whether the documents filed along with the application to admit additional evidence were relevant and necessary for deciding the question which arose for consideration in the proceedings? 2. Whether further evidence was necessary for connecting the Collectors Certificates to the suit land and for the purpose of enabling the court to decide the effect of the entry found in the extract from the Madras Town Survey Register?
Ratio Decidendi: 1. The court held that the documents filed along with the application to admit additional evidence were relevant and necessary for deciding the question which arose for consideration in the proceedings, as they prima facie appeared to be relevant and it was necessary for the appellant to establish the relevancy by appropriate evidence. 2. The court also found that further evidence was necessary for connecting the Collectors Certificates to the suit land and for the purpose of enabling the court to decide the effect of the entry found in the extract from the Madras Town Survey Register, as the entire evidence on record, including that which may be let in by the parties hereafter, had to be considered to decide the question as to whether the plaintiffs were entitled to get a declaration as prayed for by them.
Final Decision: The court allowed the second appeal, set aside the judgments of the courts below, and remanded the suit to the trial court for fresh disposal in accordance with law. Both the parties were permitted to adduce additional evidence, and the trial court was directed to dispose of the suit as early as possible and preferably before the 31st March, 1997.
1. The appellant in the Second Appeal is the first defendant in the suit, which is a temple represented by its Executive Officer. When the appeal was part-heard, the appellant filed C.M.P. No. 8049 of 1996 for receiving the documents filed therewith as additional evidence in the appeal. It is a petition under O. 41, R. 27 of the Code of Civil Procedure. Under that Rule, the Court may allow additional evidence, if (i) the court, from whose decree the appeal is preferred, has refused to admit evidence, which ought to have been admitted, or (ii) 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 (iii) the appellate court requires any evidence to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. The present case cannot fall under (i). In the affidavit filed by the present Executive Officer in support of the petition, it is averred that after assuming charge of the temple, he searched the old records and on going through the same, he found that necessary records were kept in a bundle. Finding that certain certificates issues by the Collector of Madras on 26.8.1822 were available, he applied to the Joint Director, Central Survey Department, Madras-5 for furnishing an Extract from Madras Town Survey Register, since the survey was conducted in 1895-1896. A certified copy of the said extract was issued on 23.4.1996 from which it is seen that the suit property T.S. No. 3814 is shown as belonging to the appellant-temple. It is stated in the affidavit that the said documents could not be filed earlier in spite of due diligence and the Extract from Madras Town Survey Register was furnished only recently and non-production of the same earlier is neither wilful nor wanton. It is also stated that the documents are necessary for proper appreciation of the point arising for consideration in the appeal.
2. Thus, an attempt is made in the affidavit to bring the case under (ii) and (iii). In the counter affidavit filed by respondents 1 to 4 it is stated that the documents cannot be filed at the Second Appellate stage, as nothing prevented the temple authorities from filing documents at the earliest point of time. It is also pointed out that the suit is of the year 1982. It is also averred that the documents are not relevant and admissible. After discussing the relevancy of the document, it is alleged that a notice was issued to the Devasthanam during the pendency of the suit to produce documents, viz., patta and blue-print sketch showing the location of R.S. No. 3814 and a notice on 12.4.1986 to the counsel for the temple to produce the register in which in page 48 it was stated that the Devasthanam was entitled for Melwaram. It is also pointed out that the Second Appeal has been in the list for more than two years and there is no justification for admitting additional evidence at this late stage.
3. It is no doubt true that the requirements of O. 41, R. 27, C.P.C., should be strictly complied with before any document is admitted as additional evidence in any appeal and in particular, in a Second Appeal. A view was also being taken in this Court that no additional evidence can be admitted in a Second Appeal, as it involves only a question of law. But the matter has been considered in detail and it has been held by a Division Bench that in appropriate cases additional evidence can be admitted even in Second Appeals. Vide: Kumaraswamy Gounder v. D.R. Nanjappa Gounder (1977 T.L.N.J. 375).
4. It should not be forgotten that an idol is in the position of a minor. It has been held in Bishwanath v. Radha Ballabhji (AIR 1967 S.C. 1044) that an idol is in the position of a minor and when the person representing it leaves it in lurch, a person interested in
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