Court affirms the first appellate court's acceptance of additional evidence under CPC, ruling no substantial question of law warrants reversal.

JUDGMENT

This appeal arises out of the judgment of the Additional District Court - III, Thodupuzha, in reversing the judgment and decree in O.S.No.5/1998 of the Munsiff Court, Devikulam.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The appellants are the defendants in O.S.No.5/1998, a suit for permanent prohibitory injunction. Going by the plaint averments in the suit, the plaint schedule property having 51 cents originally belonged to plaintiffs’ father and after the death of the plaintiffs’ father, the property was in joint possession of the plaintiffs and their sister. It is contended that on 07.01.1998, the defendants with their men tried to trespass into the plaint schedule property and tried to take forcible possession of the same. Hence, the suit. The defendants resisted the suit by contending that, the plaintiffs’ father had originally assigned the property in favour of the defendants’ predecessors, namely Subramanian and Raman, by agreement dated 27.02.1978 and also given possession of the plaintiff schedule property.

2.2. On behalf of the plaintiffs, only Ext.A1 was produced and PW1 and PW2 were examined and on behalf of the defendants, Exts.B1 to B3 were produced and DW1 and DW2 were examined. Ext.C1 is the report of the Advocate Commissioner. After a full fledged trial, the Munsiff Court, Devikulam, by judgment dated 31.07.2000, dismissed the suit. Aggrieved, the plaintiffs preferred A.S No.69/2004 before the Additional District Court - III, Thodupuzha. Before the first appellate court, the plaintiffs produced additional documents under Order XLI Rule 27 of the Code of Civil Procedure, 1908 (CPC). The first appellate court reversed the judgment and decree of the trial court on 30.10.2004 and received the additional documents in evidence and decreed the suit. Aggrieved, the defendants/appellants herein came before this Court in R.S.A.No.1000/2005, which was allowed by judgment dated 19.04.2024 remanding the matter back to the first appellate court in order to consider the matter afresh. The plaintiffs were given liberty to apply for permission to produce additional documents afresh.

2.3. In pursuance to the said order of remand, two applications were filed on behalf of the plaintiffs, I.A.Nos.1/2024 and 6/2024, wherein they had narrated the circumstances under which they were unable to produce the additional documents. Accepting the additional documents, the first appellate court again by judgment dated 23.07.2025 allowed the appeal and decreed the suit. Hence, the present second appeal.

3. Heard, Adv.Sumathi Dandapani, learned Senior Counsel, assisted by Adv.Millu Dandapani, appearing for the appellants and Adv.P.B.Subramanyan – learned counsel appearing for respondents 1 and 2.

4. Adv.Sumathi Dandapani – learned Senior Counsel appearing for the appellants, pointed out that the first appellate court erred egregiously in accepting the additional documents produced along with the applications, I.A Nos.1/2024 and 6/2024, without satisfying itself regarding the mandatory requirement of due diligence under Order XLI Rule 27(1)(aa) of the CPC, 1908. There is no explanation caused by the plaintiffs as to why these documents were not available before the trial court. The learned Senior Counsel further pointed that, initially, the defendands had produced various tax receipts from the year 1978 to show that the plaintiffs’ father had put the defendants in possession of the plaint schedule property. Since no relief for recovery of possession was sought, admittedly the suit for injunction simplicitor is not maintainable.

5. Per Contra, Adv.P.B.Subramanyan - learned counsel appearing for respodents 1 a