The Court has the discretion to allow the marking of additional evidence under Order 41 Rule 27 of the Civil Procedure Code, considering the relevance and timing of the documents.

1. This Civil Revision Petition is filed against the order dated 20.12.2010 passed in I.A.No.158 of 2010 in A.S.No.17 of 2010 on the file of the Subordinate Judge, Maduranthagam, whereby the petitioners' application under Order 41 Rule 27 of Civil Procedure Code seeking permission to mark additional documents was rejected.

2. The petitioners in this civil revision petition are the defendants in the suit. The suit in O.S.No.251 of 2006 was filed by the respondents/plaintiffs herein for declaration and permanent injunction on the file of the District Munsif, Maduranthagam. The said suit was decreed by the judgment and decree dated 11.01.2010. Aggrieved by the same, the petitioners herein have preferred an appeal in A.S.No.17 of 2010 on the file of the Subordinate Judge, Maduranthagam.

3. During the pendency of the said appeal, the petitioners herein have filed an application in I.A.No.158 of 2010 under Order 41 Rule 27 of Civil Procedure Code seeking permission to mark 12 additional documents namely, a unregistered Koor chit entered into between Perumal Balasundaram and Chandrababu dated 03.08.2005, a Registration copy of partition deed entered into between Manjini Pillai and others dated 28.05.1992, Patta and kist receipts of the years 2001 to 2010.

4. An affidavit filed in support of the said application stated that those documents were not marked before the lower Court due to mistake and the petitioners are ready to pay stamp duty and penalty charges for marking the said documents. The said application filed by the petitioners was resisted by the respondents herein. It is found in the order of the lower appellate Court that in so far as the document, namely, the unregistered Koor chit dated 3.8.2005 is concerned, already the same was sought to be marked before the trial Court by the petitioners, but the same was rejected by the trial Court and the said rejection was not challenged by the petitioners herein. Therefore, the lower appellate Court pointed out that when already the trial Court has rejected to mark the said document, the same cannot be marked as additional evidence at the appellate stage. However, in so far as the other documents are concerned, the lower appellate Court has not given any reason for its rejection.

5. The learned counsel for the petitioners submitted that unless the petitioners are permitted to mark those documents, the petitioners would be denied of their opportunity to prove their case before the lower appellate Court.

6. On the other hand the learned counsel for the respondents submitted that the petitioners have not come forward with any justifiable reason in not marking the said document before the trial Court. The learned counsel further submitted that all those documents except koor chit are subsequent to the filing of the suit and therefore, the same cannot be permitted to be marked.

7. Heard the learned counsel for the respective parties.

8. A perusal of the documents sought to be marked as additional evidence shows that patta and kist receipts(mentioned as serial Nos.5 to 7) are of the years 2007 to 2010 and they relate to the period subsequent to the filing of the suit. Therefore, those documents cannot be marked before the lower appellate Court. As far as the document, namely, the unregistered koor chit dated 03.08.2005 sought to be marked by the petitioners before the trial Court is concerned, the same was rejected and such rejection was not challenged by the petitioners by filing any revision. It appears that the trial Court refused to mark the said document as it was not a registered one. That being the factual position, the petitioners cannot be permitted to mark the unregistered Koor chit dated 03.08.2005 once again before the appellate Court. The documents namely, the registered copy of partition deed dated 28.05.1992 and kist receipt dated 07.05.2001 are alone to be considered as to whether the petitioners are entitled to mark the same or not.

9. Admittedly, the sai