M.Mani2.M.Vinayagam v. Cuddalore Municipality,rep.by its Commissioner,Having Office at Municipal Office,Cuddalore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 25.08.2010CORAMTHE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMANC.M.A. No.704 of 2010and M.P.Nos.1 and 2 of 20101.M.Mani2.M.Vinayagam... Appellants/plaintiffsvs.Cuddalore Municipality,rep.by its Commissioner,Having Office at Municipal Office,Cuddalore... Respondent/1st defendantPrayer:Civil Miscellaneous Appeal against the Judgement anddecree dated 29.1.2010 passed by the I Additional Subordinate Judge,Cuddalore, in A.S.No.106 of 2006, setting aside the judgement anddecree dated 10.10.2005 passed by the Principal District Munsif,Cuddalore, in O.S.No.463 of 2004.For Appellants::Mr.T.R.RajagopalanSenior Counselfor Mr.T.R. RajaramanFor Respondent ::Mrs.Bhavani SubbarayanJ U D G M E N TThe plaintiffs are the appellants before this Court challengingthe judgment of the appellate Court dated 29.1.2010 passed inA.S.No.106 of 2006, setting aside the judgment dated 10.10.2005passed by the Principal District Munsif, Cuddalore, in O.S.No.463 of2004 and remanding the matter once again under Order 41 Rule 23 and23-A of CPC, with a direction to receive the additional documentsfiled by the respondent/first defendant and to frame issues asstated in the judgment, apart from what had been already framed bythe trial Court and to give opportunity to the parties to let intheir evidence and pass orders in accordance with law, within threemonths from the date of receipt of a copy of the said judgment. https://hcservices.ecourts.gov.in/hcservices/

2. The appellants/plaintiffs sought for a declaration of theirtitle to the suit property and alternatively for recovery ofpossession of the suit property.3. It is seen from the narration of facts by the trial Courtthat originally, one Muthukumarasamy Chettiar, the father of theplaintiffs, formed a layout under the name 'Chairman GovindasamyNagar'. This was approved by the Deputy Director of Town andCountry Planning(S) Salem and Cuddalore as early as 1975. Theplaintiffs filed the copy of the approved layout, which showed thatthe suit property was earmarked for the public using it as 'park'.4. The contention of the plaintiffs is that the earmarkedportion for 'park' was originally owned by the plaintiff's fatherMuthusamy Chettiar. After his demise on 1.3.2002, the plaintiffsare owning the same and the same continued to be owned by the ownersmaintaining the reserved area as park. Hence, when the title andpossession of the suit property continued to be with the plaintiffsafter their father Muthusamy Chettiar, the original owner andmaintained as a park, the same need not be handed over to theGovernment or the Municipality and accordingly, the plaintiffs statethat the condition while granting the approval to the layout tomaintain the open area as park for public use was never violated bythe plaintiffs and that the respondents have no auhtority to changeits character to put it into different use, thereby change the verycharacter of the reserved area. 5. The cause of action for the suit arose when in the areaearmarked for 'park', the respondent/first defendant startedconstructing a noon meal centre, a purpose different from what itwas reserved for. The respondent/first defendant committed trespasson 6th December 2003 when it started putting up construction fornoon-meal centre, with the financial assistance from MLA Fund.Immediately, the plaintiffs caused a notice to be served on therespondent/first defendant. 6. Admittedly, the construction which was sought to be put upthrough MLA fund was injuncted upon by the order passed by thisCourt and the construction had not taken place since then. 7. In response to the claim of the plaintiffs, therespondent/first defendant filed the written statement, wherein, itwas admitted that the suit property was earmarked for 'park' in theapproved layout; however, they denied the contention of theplaintiffs that the plaintiffs were in possession of the suitproperty. It is also admitted in the written statement that thelayout was approved as early as 1975. In paragraph 6 of the writtenstatement, it is stated that the respondent/ first defendant https://hcservices.ecourts.gov.in/hcservices/ constructed a noon-meal centre in the suit property with the aid ofthe Cuddalore M.L.A's fund. It is also stated that the constructionof noon-meal centre is also for a public purpose and for the welfareof the Society. Consequently, there is no interference with thepurpose for which the area was reserved. 8. It is further stated in the written statement that the suitproperty allotted for public use has been properly utilized forpublic purpose by the respondent/first defendant, over which theplaintiffs had no right or title. It is also stated that there wasno need for creation of any document for the said purpose. Havinglost their title, the plaintiffs are not entitled to direct therespondent/first defendant to produce any document as regards thetakeover of the suit property. 9. In the light of the above, the respondent/first defendantsought for dismissal of the suit.10. The trial Court framed the following issues forconsideration:@1/thjpfs; tHf;fpy; nfhhpatz;zk; tpsk;g[if ghpfhuk; bgw;wpl chpika[z;lh>2/thjpfs; tHf;fpy; nfhhpatz;zk; brhj;J xg;g[jy; ghpfhuk; bgw;wplchpika[z;lh>3/thjpfs; tHf;fpy; nfhhpatz;zk; braYWj;Jf;fl;lis ghpfhuk; bgw;wplchpika[z;lh>4/1975k; Mz;oy; 1k; vjph;thjp jhth brhj;jpd; RthjPdj;ijvLj;Jf;bfhz;L mJKjw;bfhz;L RthjPdj;jpy; ,Ue;J tUtjhf TWtJcz;ikah>5/1k; vjph;thjp jhth brhj;jpy; 2003k; Mz;L. oOrk;gh; khjk; Kjy;thuj;jpy; mj;JkPwp gpuntrpj;Jtpl;ljhf TWtJ rhpah>6/,e;j jhth rhpahd Kiwapy; kjpg;gplg;gl;L rhpahd Kiwapy; ePjpkd;wf;fl;lzk; brYj;jg;gl;Ls;sjh>7/thjpfSf;F fpilf;fntz;oa ,ju ghpfhuk; vd;d>11. The trial Court pointed out that the respondent/first https://hcservices.ecourts.gov.in/hcservices/ defendant had violated the terms of the layout sanctioned in usingthe area as a noon-meal centre instead of using it as a 'park'. Thetrial Court also pointed out that even though an application wasmade on behalf of the plaintiffs calling upon the respondent/firstdefendant to produce necessary documents as regards the approvalgranted to 'Chairman Govindasamy Nagar', in the reply filed by therespondent/first defendant on 17.8.2005, the respondent/1stdefendant herein had taken a stand that all the documents werealready destroyed. Hence, accepting the plea of the plaintiffs andas per the decision reported in 2002-3-L.W. 180 (E.Elumalai and 11others v. Corporation of Madras and others), the trial Court heldthat the failure to produce the document on the ground ofdestruction went against the contention of the respondent hereinthat the suit property was handed over by reason of gift deed. Thetrial Court further held that the area reserved for 'park' has to bemaintained as such by the respondent/first defendant, but theyattempted to construct a noon-meal centre and accordingly, the trialCourt decreed the suit in favour of the plaintiffs. 12. Aggrieved by the said judgment, the respondent/CuddaloreMunicipality filed the appeal in A.S.No.106 of 2006 before theAdditional Subordinate Judge, Cuddalore. 13. In the course of the proceedings, the respondent hereinfiled the I.A. to receive the additional documents. The appellateCourt formulated the following questions for consideration:"1. Whether I.A.No.318 of 2008 can be allowed and thedocuments filed by the 1st defendant can be received?2. Whether the suit is barred by the law oflimitation?3. Whether there is cause of action for the suit?4. Whether the appeal is to be allowed?14. On considering the said issues, the appellate Court pointedout that ignoring the technicalities in receiving the additionaldocuments, the I.A. merited consideration. Since the title to thesuit property is an issue for decision before the Court, satisfiedof the reasons, the Court allowed the said petition to permit therespondent/first defendant to file additional documents andthereby remanded the matter to the Principal District Munsif Court,Cuddalore, for fresh trial and gave opportunity to therespondent/first defendant to submit those documents. Aggrieved bythe same the present appeal by the plaintiff.15. Learned Senior counsel appearing for theappellants/plaintiffs took me through the provisions of Order 41Rule 23 and 23-A of C.P.C., and contended that without evenconsidering the necessity and relevancy of such an application to https://hcservices.ecourts.gov.in/hcservices/ receive additional evidence in this case, the appellate Courtcommitted a serious error in mechanically allowed the I.A. andremanding the case to the trial Court for a decision.16. Learned senior counsel placed reliance on the decisions ofthe Supreme Court reported in (2002) 2 SCC 686 (P.Purushottam Reddyand another Vs. Pratap Steels Ltd., and (2001) 1 SCC 309 – (MahavirSingh and others Vs. Naresh Chandra and another), as to theappellate Court's jurisdiction to admit additional evidence and toorder remand in terms of Order 41 Rule 23 and 23A and 47 of CPC. Hecontended that without even considering the merits of the trialcourt judgment, the Court below ought not to have ordered the I.A.and remanded the case for fresh trial as a matter of course.17. The issue on the admissibility of additional evidence atthe appeal stage and the stage at which such decision would ariseand ordering of remand by the appellate Court have come up forconsideration before the Apex Court time and again. Dealing withthe power of the appellate Court to admit additional evidence,referring to Section 107, CPC and the scope of Order 41 Rule 27,C.P.C., in the decision reported in AIR 1963 SC 1526(K.Venkataramiah Vs. A. Seetharama Reddy and Ors.), the Apex Courtpointed out as follows:"10. Section 107 of the Code of Civil Procedureempowers the appellate court “to take additionalevidence or to require such evidence to betaken,” “subject to such conditions andlimitations as may be prescribed”. Rule 27 of 0.41 of the Code of Civil Procedure prescribes theconditions and limitations in the matter. Therule first lays down that the parties to anappeal shall not be entitled to produceadditional evidence, whether oral ordocumentary, in the appellate court. It thenproceeds to lay down two classes of cases wherethe appellate court may allow additionalevidence to be produced. One class is where theCourt appealed from has refused to admitevidence which ought to have been admitted. Theother class is where the appellate courtrequires such additional evidence for itself —either to enable it to pronounce judgment or forany other substantial cause. The second class ofthe rule requires that when additional evidenceis allowed to be produced by an appellate court,the Court shall record the reason for itsadmission. ""13.It is very much to be desired that the courts of https://hcservices.ecourts.gov.in/hcservices/ appeal should not overlook the provisions ofclause (2) of the Rule and should record theirreasons for admitting additional evidence. Weare not prepared, however, to accept thecontention of the appellant that the omission torecord the reason vitiates the admission of theevidence. Clearly, the object of the provisionis to keep a clear record of what weighed withthe appellate court in allowing the additionalevidence to be produced-whether this was done onthe ground (i) that the court appealed from hadrefused to admit evidence which ought to havebeen admitted, or (ii) it allowed it because itrequired it to enable it to pronounce judgmentin the appeal or (iii) it allowed this for anyother substantial cause. Where a further appeallies from the decision of the appellate courtsuch recording of the reasons is necessary anduseful also to the Court of further appeal fordeciding whether the discretion under the rulehas been judicially exercised by the courtbelow. The omission to record the reason musttherefore be treated as a serious defect. Evenso, we are unable to persuade ourselves thatthis provision is mandatory. For, it does notseem reasonable to think that the legislatureintended that even though in the circumstancesof a particular case it could be definitelyascertained from the record why the appellatecourt allowed additional evidence and it isclear that the power was properly exercisedwithin the limitation imposed by the firstclause of the Rule all that should be set atnaught merely because the provision in thesecond clause was not complied with. It may bementioned that as early as 1885 when consideringa similar provision in the corresponding sectionof the Code of 1882 viz. Section 586, the HighCourt of Calcutta held that this provision forrecording reasons is merely directory and notimperative Gopal Singh v. Jhakri Rai 4. We areaware of no case in which the correctness ofthis view has been doubted. It is worth noticingthat when the 1908 Code was framed and Order 41Rule 27 took the place of the old Section 568,the legislature was content to leave theprovision as it was and did not think it https://hcservices.ecourts.gov.in/hcservices/ necessary to say anything to make therequirement of recording reasons imperative. Itis true that the word “shall” is used in Rule 27(2); but that by itself does not make itmandatory. We are therefore of opinion that theomission of the High Court to record reasons forallowing additional evidence does not vitiatesuch admission. "Hence, the appropriate time at which the Court shall exercise thediscretion is only when on examining the evidence available onrecord that the Court finds it difficult in pronouncing the judgmentin a satisfactory manner. 18. The Apex Court further pointed out that the jurisdiction toadmit additional evidence is to be seen not only from the point ofpronouncing the judgment, but also for any other substantial cause- it being that "the Court still considers that in the interest ofjustice something which remains obscure should be filled up so thatit can pronounce its judgment in a more satisfactory manner".Referring to the decision of the Privy Council in 58 IA 254, theApex Court pointed out"17. It is easy to see that such requirement of theCourt to enable it to pronounce judgment or forany other substantial cause is not likely toarise ordinarily unless some inherent lacuna ordefect becomes apparent on an examination of theevidence. That is why in Parsotim case 5 thePrivy Council while discussing whetheradditional evidence can be admitted observed:“ It may be required to enable theCourt to pronounce judgment, or for anyother substantial cause, but in eithercase it must be the Court that requiresit. This is the plain grammatical readingof the sub-clause. The legitimateoccasion for the exercise of thisdiscretion is not whenever before theappeal is heard a party applies to adducefresh evidence, but ‘when on examiningthe evidence as it stands, some inherentlacuna efect becomes apparent’.”18. As the Privy Council proceeded to point out:“ It may well be that the defect may bepointed out by a party, or that a partymay move the Court to supply the defect,but the requirement must be the https://hcservices.ecourts.gov.in/hcservices/ requirement of the Court upon itsappreciation of the evidence as itstands.”19. In the decision reported in (2008) 1 MLJ 1253 – (K.R.MohanReddy Vs. Net Work Inc.), the Apex Court reiterated the abovestatement of law that for exercising the jurisdiction under Order 41Rule 27, C.P.C., the Appellate Court must arrive at a finding as tothe necessity of admitting additional evidence. Referring to thedecision reported in AIR 2006 SC 1864 (The State of Gujarat and Anr.Vs. Mahendrakumar Parshottambhai Desai (Dead) by L.Rs.), the ApexCourt held that the appellate Court should not pass an order so asto patch up the weakness in the evidence of the unsuccessful partybefore the trial Court and the provisions do not entitle theappellate Court to let in evidence only for the purpose ofpronouncement of the judgment in a particular way. The Apex Courtfurther held "the ability to pronounce judgment is to be understoodas the ability to pronounce judgment satisfactorily to the mind ofthe Court. But mere difficulty is not sufficient to issue suchdirection. While saying so, however, we do not mean that the Courtat an appropriate stage would be precluded from considering theapplicability of Clause (b)" - Refer (2008) 1 MLJ 1253 – (K.R.MohanReddy Vs. Net Work Inc.) for similar such statement of law by theApex Court.20. Hence, where the appellate Court decides to admitadditional evidence, the Court must act within the scope of Order41 Rule 27, C.P.C. Referring to the decision of the Privy Councilin Kessowji Issur Vs. Great Indian Peninsula Rly. Co, in thedecision reported in (2001) 1 SCC 309 (Mahavir Singh and others Vs.Naresh Chandra and another), the Apex Court held that Order 41 Rule27, C.P.C. can be looked at for taking additional evidence when:(i) the Court from whose decree the appeal is preferredhas refused to admit evidence which ought to havebeen admitted, or(ii) the party seeking to produce additionalevidence, establishes that notwithstanding theexercise of due diligence, such evidence was notwithin his knowledge or could not, after the exerciseof due diligence, be produced by him at the time whenthe decree appealed against was passed, or(iii) the appellate court requires any document to beproduced or any witness to be examined to enable itto pronounce judgment, or for any other substantialcause."Thus where the appellate Court decides to allow additional evidence https://hcservices.ecourts.gov.in/hcservices/ to be let in, the immediate question that calls for a decisionbefore the appellate Court is the application of Order 41 Rule 27,C.P.C., as to whether such additional evidence, oral or documentaryallowed, is to be produced before the appellate Court or the trialCourt to receive such evidence and send it back to the appellateCourt or to order remand to the trial Court for fresh disposal. Inthe decision reported in (2002) 2 SCC 686 (P.Purushottam Reddy andanother Vs. Pratap Steels Ltd.), the Apex Court pointed out thatOrder 41 Rule 23-A of CPC provides for a remand by a Court ofappeal, only under the stated circumstances, namely, if the trialCourt disposed of the case otherwise than on a preliminary issue andthe decree is reversed in appeal and a retrial is considerednecessary. On the twin conditions being satisfied, the appellateCourt can exercise the power of remand under Order 41 Rule 23-A,C.P.C., only in exceptional cases. When the case is not coveredeither by Order 41 Rule 23 or Rule 23-A or Rule 25, C.P.C., anappellate Court should be circumspect in ordering a remand for thesimple reason that an unwarranted order of remand gives thelitigation an undeserved lease of life and therefore, it must beavoided. 21. Considering the amendment in Order 41 Clauses (2) and (3)in Rule 23 and 23-A, C.P.C., the Apex Court further pointed out thatthe expression 'to enable it to pronounce judgment' refers to alacuna or defect in the evidence as it stands, which warrantsadmission of additional evidence.22. Hence, in cases where the appellate Court finds that thematerials on hand are not sufficient to definitely come to aconclusion or that the judgment and decree of the trial Court iserroneous on fact that receipt of additional evidence is requiredfor doing substantial justice, that the matter should be decidedafresh by the trial Court, then alone the Court can admit additionalevidence and order a remand for fresh disposal in the light of theadditional evidence produced by the aggrieved party. The appellateCourt shall not, as a matter of course, admit additional evidenceeither at the instance of the plaintiffs or the defendant evenbefore considering the trial Court's judgment. Learned seniorcounsel pointed out that the default of the party in not producingan evidence is no ground for admitting the evidence and to order aremand. 23. Thus, the question of remand, in all circumstances, wouldhave to be exercised with caution, subject only if and when theevidence on material are not sufficient enough to enable the Courtto come to a decision on an issue. The sufficiency of the evidencehas to be understood in the context of the difficulty in reaching a https://hcservices.ecourts.gov.in/hcservices/ decision on the basis of the existing evidence satisfactorily to themind of the Court delivering it. Hence, unless and until theappellate Court undertakes the exercise of considering the judgmentof the trial Court, the decision of an appellate Court to receiveadditional evidence and thereby remand the case even before thestage of looking into the decision, would be a case of putting thecart before the horse. Dealing with Section 107(d) and Order 41Rule 27 of C.P.C., in the decision reported in (2001) 1 SCC 309(Mahavir Singh and others Vs. Naresh Chandra and another), the ApexCourt pointed out that the parties are not, as a matter of right,entitled to the admission of additional evidence and it is purely amatter of discretion which has to be exercised judiciously andsparingly. Hence, the stage at which such an exercise would arise,certainly demands consideration of the Court that even before thedecision of the trial court is tested, the appellate Court cannotdecide on the merits of the I.A. to receive the additional evidenceto order a remand. Going by the law declared by the Apex Court, inthe decision reported in 2007 (2) CTC 49 (Kannathal and 4 Others Vs.Arulmighu Kanniammal Karuppasamy Thirukoil) relied on by the learnedsenior counsel, unless the appellate Court has considered thejudgment of the trial Court on merits so as to form a view as to thenecessity of admitting additional evidence, the decision to remandthe matter back on receipt of an I.A. as a matter of course byhearing the party seeking the direction to file the additionalevidence, would be in violation of Order 41 Rule 23 and 23-A ofC.P.C. and hence, liable to be set aside.24. In the light of the above-said decisions on the subject,when we look at the judgment passed by the appellate Court, it isevident that even before getting into the merits of the judgment,the appellate Court had merely considered the merits of the I.A.,thereby ordered the remand - an exercise which is contrary to theprovisions of Order 41 Rule 23 and 23-A of C.P.C. and the law laiddown by the Apex Court.25. In the light of the above, I have no hesitation in settingaside the order passed by the appellate Court remanding the case tothe trial Court for considering the additional documents filed bythe respondent/first defendant.26. It is relevant to note herein that as against the I.A.,C.R.P.No.3615 of 2008 was filed before this Court at the instance ofthe plaintiffs and this Court, by order dated 19.12.2008, allowedthe said C.R.P. The net result is that the Court below has toconsider the relevancy of the I.A. with reference to the merits ofthe judgment in the suit. However, the present exercise by theappellate Court is no better than what was originally done by it. Areading of the judgment of the appellate Court shows that after https://hcservices.ecourts.gov.in/hcservices/ narrating the facts, the Court below formulated the questions forconsideration and thereafter immediately considered the merits ofthe I.A. only to hold that in the interest of justice, to avoidmultiplicity of the proceedings and to afford an opportunity to thedefendant, the I.A. had to be allowed. As to the necessity of aremand, the Court below pointed out to the plea of limitation raisedby the defendant and that the cause alleged by the plaintiff wasfalse and imaginary. In considering the said objection, all thatthe appellate Court observed was that having regard to the decisionreported in 2004 Civil LJ 362, it was necessary that in the interestof justice, issues were to be framed and parties allowed to leadfurther evidence; apart from considering the documents filed inI.A.No.318 of 2008, to give opportunity to the parties herein to letin evidence on the said documents too. Thus the Tribunal remandedthe case with a direction to receive the documents, frame the issueson the aspect of limitation, apart from issues on the aspect oflimitation and issues as to whether the plaintiff was estopped fromclaiming title. As already pointed out, there is hardly anydiscussion in the judgment rendered by the trial Court on thestrength of the evidence available therein, to consider settingaside of the order and to remand the case once again for a de novotrial. 27. In the circumstances, I have no hesitation in setting asidethe judgment of the appellate Court dated 29.1.2010 passed inA.S.No.106 of 2006. The appellate Court is hereby directed toconsider the merits of the judgment passed in O.S.No.463 of 2004 andthereby consider the relevancy of the I.A. filed with reference toOrder 41 Rule 23 and 23-A of C.P.C.28. It goes without saying that the observations made in thejudgment dated 29.1.2010 passed in A.S.No.106 of 2006 shall,however, not have any effect, while considering the merits of thejudgment given in favour of the plaintiffs. 29. With the above observation, the Civil Miscellaneous Appealstands disposed of. No costs. Consequently, connectedmiscellaneous petitions are closed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.msk https://hcservices.ecourts.gov.in/hcservices/ To1. The I Additional Subordinate Judge,Cuddalore2. The Principal District Munsif,Cuddalore1 cc to Mr.T.R. Rajaraman, advocate, Sr. 63028 C.M.A.No.704 of 2010KRG (CO)kk 26/11