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IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, R. PONGIAPPAN, JJ.
A.L. Abul Kalam Azad - Petitioner
Versus
A.L. Jawaharlal, Rep. by its Power Agent A. Sowkath Ali & Others - Respondent
C.R.P.Nos. 4093 & 4094 of 2010, 4747 & 4748 of 2011, 453 of 2017 & A.S. Nos. 993 of 2009 & 553 of 2017 & C.M.P.No. 2145, 3395, 18509 of 2017, 10841 of 2018, M.P.No. 1 of 2012, 1 of 2009, 1 of 2010
Decided on : 26-11-2018
Constitution of India - Article 227 - Article 226 - Civil Procedure Code, 1908 - Section 96 read Order XLI Rule 1 - Section 96(3) and Order 23 Rule 3-A of Civil - Section 96 - Legal Services Authorities Act, 1987 - Section 20 - Section 21 - Indian Contract Act, 1872 - Section 52 - Limitation Act, 1963 - Article 59 - Section 3 - Motor Vehicle Act, 1988 - Property – Possession Of Property - File of Principal District Court, was filed by respondent, as against his brother, i.e. appellant and others, for partition in respect of suit properties - Appellant also filed suit in O.S. on file of Principal District Court, against respondent and his wife, for partition of 90% share in respect of suit properties wantonly and wilfully left out by respondent-Jawarhalal in O.S., contending that suit property was purchased and he has contributed about 90% of amount for purchase of same and its development - That apart, appellant filed another suit in O.S. for accounts against father-in-law of respondent, contending that father-in-law of respondent is in management of suit property by letting out same to tenants and collecting rents – Held, Case of appellant- that he had contributed 90% of amount towards purchase of property by father-in-law of respondent-, but he has not produced any tangible evidence by producing Bank account to show that he had sent money for purchase of property by investing 90% of amount - What was exact amount invested in purchase of property, is not shown and only salary receipt and other documents were marked as exhibits in suit - Applying above decision of Supreme Court to case on hand, claim of appellant/first defendant in O.S., for filing additional documents, will not fall in any of parameters laid down by Apex Court in above decision - It is not case of appellant/first defendant that he has filed documents before trial court, but it was unlawfully rejected by trial court - It is also not case of first defendant that inspite of exercise of due diligence, he was prevented from filing documents in his possession - Further, it is not open to appellant/first defendant to make fresh allegations and call upon other side to admit or deny such allegations at stage of appeal, which is contrary to provisions contained under Order 41 Rule 27 of CPC - Therefore, court is of view that prayer of appellant/first defendant in these miscellaneous petitions, seeking permission to mark additional documents at appellate stage, cannot be countenanced and it has to be rejected – Appeal Dismissed.
R. SUBBIAH, J.
1. Since the issues involved in all these cases are inter-related to each other, they are disposed of by this common judgment.
2. The prayer in these Civil Revision Petitions and Appeal Suits (First Appeals) are as follows:
(a) Civil Revision Petition No.4093 of 2010 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.30 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.
(b) Civil Revision Petition No.4094 of 2010 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.31 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.
(c) Civil Revision Petition No.4747 of 2011 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.21 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.
(d) Civil Revision Petition No.4748 of 2011 filed under Article 227 of the Constitution of India, against the order and decretal order dated 03.08.2009 passed in I.A.No.22 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.
(e) Civil Revision Petition No.453 of 2017 filed under Article 227 of the Constitution of India, against the order and decretal order dated 26.10.2016 passed in I.A.No.49 of 2016 in O.S.No.3 of 2011 on the file of the Principal District Court, Perambalur.
(f) Appeal Suit (First Appeal) No.553 of 2017 filed under Section 96 read with Order XLI Rule 1 of the Civil Procedure Code against the judgment and decree dated 11.09.2017 passed in O.S.No.3 of 2011 on the file of the Mahila Court, Perambalur.
(g) Appeal Suit (First Appeal) No.993 of 2009 filed under Section 96 of the Civil Procedure Code against the order and decretal order dated 03.08.2009 passed in I.A.No.21 of 2007 in O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur.
3. For the purpose of convenience, the parties are herein referred to as appellant-A.L.Abul Kalam Azad and respondent-A.L.Jawaharlal.
4. O.S.No.13 of 2005 on the file of the Principal District Court, Perambalur, was filed by the respondent, as against his brother, i.e. the appellant and others, for partition in respect of the suit properties. The appellant also filed suit in O.S.No.18 of 2005 on the file of the Principal District Court, Perambalur, against the respondent and his wife, for partition of 90% share in respect of the suit properties wantonly and wilfully left out by the respondent-Jawarhalal in O.S.No.13 of 2005, contending that the suit property was purchased and he has contributed about 90% of the amount for purchase of the same and its development. That apart, the appellant filed another suit in O.S.No.412 of 2005 for accounts against the father-in-law of the respondent, contending that the father-in-law of the respondent is in management of the suit property by letting out the same to the tenants and collecting rents.
5. By mutual consent, O.S.No.13 of 2005 was referred to Lok Adalat for amicable settlement under Section 20 of the Legal Services Authorities Act, on the basis of the compromise entered into between the parties. As per Clause 5 of the terms of compromise decree, the amount deposited in I.A.No.14 of 2006 in O.S.No.13 of 2005 by the fourth defendant in the suit, had been withdrawn by the appellant and remitted to the loan amount, which had been done by the appellant after the compromise decree.
6. As per the Memorandum of Compromise, the respondent-A.L.Jawaharlal has to pay a sum of Rs.42 lakhs to the appellant-A.L.Abul Kalam Azad, which amount was spent by the appellant in excess towards the construction/renovation of J.K.Mahal Kalyana Mandapam, which is described as Item No.3 of the suit schedule properties. According to the respondent, the said amount has to be paid to the appellant from and out of the sale pr
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