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IN THE HIGH COURT OF JUDICATURE AT MADRAS
HON’BLE MR. JUSTICE S. SOUNTHAR, J.
M. Kumarappan S/o Marappa Gounder – Petitioner
Versus
Ponnusamy S/o Marappa Gounder – Respondent
C.R.P. No. 2123 of 2020, C.M.P. No. 13449 of 2020
Decided On : 22-03-2024
CIVIL REVISION PETITION - ADMISSION OF ADDITIONAL EVIDENCE - Order XLI Rule 27, Code of Civil Procedure - The court discussed the provisions of Order XLI Rule 27 of the Code of Civil Procedure, which governs the admission of additional evidence in appellate courts. The key legal provision requires that a party seeking to produce additional evidence must demonstrate that the evidence was not within their knowledge despite due diligence. The court interpreted this provision to mean that it does not allow parties to fill gaps in their evidence or to remedy omissions made during the trial. This interpretation influenced the court's decision to dismiss the petitioners' request for additional evidence, as they failed to provide valid reasons for not examining the attestors of the Will earlier.
Fact of the Case:
The petitioners filed a suit for partition based on a Will executed in favor of their vendors. The trial court dismissed the suit for lack of proof of the Will, leading the petitioners to appeal and subsequently seek to introduce additional evidence regarding the Will in the appellate court.
Finding of the Court:
The court found that the petitioners did not exercise due diligence in proving the Will, as they failed to examine the attestors during the trial. The court upheld the First Appellate Court's dismissal of the application for additional evidence, stating that the petitioners were attempting to fill gaps in their case.
Issues: Whether the petitioners could introduce additional evidence in the appellate court under Order XLI Rule 27 of the Code of Civil Procedure, despite failing to present it during the trial.
Ratio Decidendi: The court emphasized that the provisions of Order XLI Rule 27 are not meant to patch up weak points in a case or fill omissions in evidence. The burden was on the petitioners to prove the Will, and their failure to do so at the trial stage precluded them from introducing additional evidence at the appellate stage.
Final Decision: The Civil Revision Petition was dismissed, affirming the First Appellate Court's order denying the admission of additional evidence.
ORDER :
Prayer: Civil Revision Petition filed under Article 227 of Constitution of India, praying to set aside the fair and decreetal order passed by the learned Additional District and Sessions Judge, Namakkal dated 08.02.2018 made in I.A. No. 1 of 2014 in A.S. No. 36 of 2013.
1. The Civil Revision Petition is filed challenging the order passed by the First Appellate Court dismissing the application filed by the petitioners for reception of additional evidence under Order XLI Rule 27 of Code of Civil Procedure.
2. The petitioners herein filed a Suit for partition and separate possession. The petitioners referred about a Will dated 14.07.1992 executed by one Pavayi Ammal in favour of Chinnammal and Shanmugam. The said Chinnammal and Shanmugam are vendors of petitioners' vendor Radhamani and Senthilkumar. The respondents herein filed their Written statement and resisted the Suit, inter-alia denying the Will relied on by the petitioners. The Trial Court held that the Will relied on by the petitioners was not proved by examining attesting witnesses and hence dismissed the Suit. Aggrieved by the same, the petitioners filed an appeal in A.S. No. 36 of 2013 before the Additional District and Sessions Court, Namakkal.
3. Pending appeal, the petitioners filed an application under Order XLI Rule 27 of Code of Civil Procedure seeking leave of the Court to examine attestor to the Will in the First Appellate Court. Aggrieved by the dismissal of said application, the petitioners are before this Court.
4. Mr. P. Valliappan, the learned Senior Counsel appearing for the petitioners submitted that the petitioners are not the direct beneficiaries under the Will. According to him, the Will was executed in favour of the petitioners' vendor's vendor and hence, the failure of the petitioners to examine the attestors cannot be put against them. The learned counsel further submits that Order XLI Rule 27 of Code of Civil Procedure is only a procedural law and the same is a handmaid of justice. Therefore, in order to give an opportunity to the petitioners to prove their case, leave shall be granted to examine the attestor of the disputed Will.
5. Mr. S. Mukunth, the learned Senior Counsel appearing for the respondents submitted that the Will relied on by the petitioners was specifically disputed in the written statement filed by the respondents and notwithstanding the said fact the petitioners failed to prove the Will by examining any one of the attestors to the document. Therefore, the petitioners cannot be allowed to fill up the lacunae in their evidence. In support of the contention, the learned Senior Counsel for the respondents has relied on the judgment of the Hon'ble Apex Court in N. Kamalam (Dead) and another vs. Ayyasamy and another, (2001) 7 Supreme Court Cases 503.
6. A perusal of the averments found in the plaint would indicate that the petitioners referred to the Will executed by Pavayi Ammal in favour of their vendors' vendors Chinnammal and Shanmugam. In response to the averments in the plaint, the respondents in their written statement specifically denied the Will. However, the petitioners, for the reasons best known to them, failed to examine the attestor to the Will and prove the same in the manner known to law. It was also stated by the petitioners that the disputed Will was produced by the petitioners in a claim petition itself. The said claim petition was allowed and the said order was marked as Ex.A.18.
7. The petitioners were very well aware of the dispute raised by the respondents with regard to the genuineness of the Will. In such circumstances, the burden is on the petitioners, as propounder of the Will, to prove the same by examining anyone of the attestors to the document. In the affidavit filed in support of the present application for leading additional evidence, the petitioners have not mentioned any reason for their failure to examine the attestor before the Trial Court.
8. Order XLI Rule 27 of Code of Civil Procedure reads as fo
The appellate court cannot admit additional evidence to fill gaps in a party's case; the party must demonstrate due diligence in presenting evidence at the trial stage.
An appellate court cannot permit additional evidence under Order 41 Rule 27(aa) of the Code of Civil Procedure if the applicant fails to establish due diligence, and such provisions cannot be invoked....
The production of additional evidence, such as the original Will and examination of legal representatives of the attestor, may be allowed to ensure complete adjudication of a dispute.
The admissibility of additional evidence at the appellate stage depends on whether the appellate court requires the evidence to enable it to pronounce judgment or for any other substantial cause.
Additional evidence under Order 41 Rule 27 CPC must be considered at the final hearing of an appeal, not prior.
Production of additional evidence – Where additional evidence sought to be adduced removes cloud of doubt over the case and evidence has a direct and important bearing on main issue in suit, such app....
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