High Court · 2025

C.M.P.(MD)No.7505 of 2022BEFORE THE MADURAI BENCH OF MADRAS HIGH COURTDATED : 21.04.2025CORAMTHE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN andTHE HONOURABLE MR.JUSTICE M.JOTHIRAMANC.M.P.(MD)No.7505 of 2022inA.S.(MD)No.101 of 2016M.Viswanathan .... Petitioner / Appellant Vs.1.Kannammal2.A.Shanmughasundaram3.Sarojini4.Mangayarkarasi ... Respondents / Respondents Prayer : Petition filed under Order XLI Rule 27 of C.P.C praying to pass an orderpermitting the petitioner to produce the additional documentary evidence namelyoriginal Will dated 17.09.2003 executed by the petitioner's grandmotherPalaniammal. For Appellants : Mr.S.Anand Chandrasekar for M/s.Sarvabhauman Associates For Respondents : Mr.D.S.Haroon Rasheed for R1 : No appearance for R2 to R4ORDER(Order of the Court was made by G.R.SWAMINATHAN, J.) A.S.(MD)No.101 of 2016 arises out of a suit for partition. The suit schedule1/7 https://www.mhc.tn.gov.in/judis C.M.P.(MD)No.7505 of 2022properties are two in number. The first item is a residential property, while thesecond item is a non-residential property. It is not in dispute that both the itemswere purchased by one Palaniammal under Ex.A1 & Ex.A2. Palaniammal gotmarried to Ammapatti Chettiar. Through the wedlock, three children were bornnamely Marimuthu, Shanmugasundaram & Kannammal. According toKannammal, Palaniammal died intestate and therefore, she is entitled to 1/3rd sharein the suit schedule properties. O.S.No.18 of 2011 was instituted on the file of theAdditional District Judge, Dindigul for dividing the property in three equal shareand allotting one such share in her favour. Even before the suit was filed, the elderson Marimuthu passed away leaving behind the legal heirs namely Sarojini,Viswanathan & Mangayarkarasi (D2 to D4). The preliminary decree was passed asprayed for on 23.02.2016. Challenging the same, the appeal came to be filed byViswanathan / 3rd defendant. 2. Viswanathan had also filed C.M.P.(MD)No.7505 of 2022 for adducingadditional evidence. The said petition was taken up along with the main appeal.The learned counsel appearing for the appellant submitted that the prime defence ofthe appellant Viswanathan was that Palaniammal had executed the registered Willdated 17.09.2003 bequeathing the suit second schedule item in his favour. Since theWill has to be proved by examining atleast one attestor, the appellant had also2/7 https://www.mhc.tn.gov.in/judis C.M.P.(MD)No.7505 of 2022produced the attestor before the Court below for examination. For reasons that theappellant is unable to explain, the attestor was not examined. As a result,Viswanathan who sought to propound the Will not prove the same in terms ofSection 68 of the Evidence Act, 1872. 3. The learned counsel appearing for the appellant states that during therelevant time, only a certified copy of the Will was marked as Ex.B1. Since theappellant had raised funds on the strength of the Will, the original Will wasdeposited with the Bank. The original Will was subsequently taken back. Theappellant is also ready to prove the said Will by examining the testator as well thescribe. This attempt on the part of the appellant is strenuously opposed by thelearned counsel for the plaintiff. 4. The learned counsel for the plaintiff states that in terms of the Order 41Rule 27 of C.P.C., the appellant cannot be granted such indulgence. If the petitionfiled by the appellant is allowed, it would amount to helping the appellant to fill upthe lacuna. The appellant obviously knew that Will can be proved only byexamining atleast one of the attestors if alive. The court below had held against theappellant only because he failed to prove the said Will. Having failed to avail theopportunity, the appellant cannot be now allowed any more indulgence. If theappellant had not been given opportunities, then he may have cause for complaint.3/7 https://www.mhc.tn.gov.in/judis C.M.P.(MD)No.7505 of 2022In this case, opportunity was given and it was not utilized by the appellant. Hetherefore called upon this Court to dismiss the petition under Order 41 Rule 27 ofC.P.C. 5. Order 41 Rule 27 of C.P.C reads as follows:-“27.Production of Additional Evidence in Appellate Court:-(1) The parties to an appeal shall not be entitled to produceadditional evidence, whether oral or documentary, in the AppellateCourt. But if-(a) the Court from whose decree the appeal is preferred hasrefused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishesthat notwithstanding the exercise of due diligence, such evidence wasnot within his knowledge or could not, after the exercise of duediligence, be produced by him at the time, when the decree appealedagainst was passed, or (b) the Appellate Court requires any document to be produced orany witness to be examined to enable it to pronounce Judgment, or forany other substantial cause,the Appellate Court may allow such evidence or document to beproduced, or witness to be examined.(2) Whenever additional evidence is allowed to be produced byan Additional Court, the Court shall record the reason for itsadmission.” 4/7 https://www.mhc.tn.gov.in/judis C.M.P.(MD)No.7505 of 20226. We carefully considered the rival contentions and went through theevidence on record. The decision of the Hon'ble Supreme Court reported in (2015) 1SCC 677 (Wadi Vs. Amilal and others) is on the point. The Hon'ble Supreme Courtin the said decision held as follows:- “7. Now it is clear that Rule 27 deals with production ofadditional evidence in the appellate court. The general principleincorporated in Sub-rule (1) is that the parties to an appeal are notentitled to produce additional evidence (oral or documentary) in theappellate court to cure a lacuna or fill up a gap in a case. Theexceptions to that principle are enumerated thereunder in Clauses (a),(a) and (b). We are concerned here with Clause (b) which is anenabling provision. It says that if the appellate court requires anydocument to be produced or any witness to be examined to enable it topronounce judgment, it may allow such document to be produced orwitness to be examined. The requirement or need is that of theappellate court bearing in mind that the interest of justice isparamount. If it feels that pronouncing a judgment in the absence ofsuch evidence would result in a defective decision and to pronouncean effective judgment admission of such evidence is necessary, Clause(b) enables it to adopt that course. Invocation of Clause (b) does notdepend upon the vigilance or negligence of the parties for it is notmeant for them. It is for the appellant to resort to it when on aconsideration of material on record it feels that admission of additionalevidence is necessary to pronounce a satisfactory judgment in the5/7 https://www.mhc.tn.gov.in/judis C.M.P.(MD)No.7505 of 2022case.” 7. Respectfully applying the aforesaid ratio, we hold that this petition has to beallowed. It is true that the appellant had been guilty of a serious negligence. Butthen, his entire case is based on the registered Will. The Court below had also madean observation that the appellant had produced the attesting witness as well as thescribe. Because of this specific finding given by the Court below, we are inclined toshow some indulgence in this case. But then, it is the appellant who is responsiblefor delaying the proceedings. He should therefore be mulcted with necessary cost. 8. The Civil Miscellaneous Petition is allowed in the following terms:-A. The court below is directed to mark the original Will dated 17.09.2003 asEx.B12. B. The parties will appear before the Court below on 14.07.2025. TheCourt below will issue notices to all the parties. On the said date, theappellant herein must be ready with his witnesses. The examination of thewitnesses shall be concluded on the same day or any other day subject tothe convenience of the Court below. C. After marking the document and recording the evidence of thewitnesses, the record shall be despatched to this Court. The evidence to beadduced by the witnesses will be confined to proof of Ex.B1-Will dated6/7 https://www.mhc.tn.gov.in/judis C.M.P.(MD)No.7505 of 202217.09.2003. D. The learned counsel for the plaintiff as well as the othercontesting defendants are at liberty to cross examine the said witnesses.The appellant is directed to pay cost of Rs.10,000/- to the plaintiff. sd/- 21/04/2025 / TRUE COPY / /05/2025 Sub-Assistant Registrar (C.S.-I/ II /III/ IV) Madurai Bench of Madras High Court, Madurai - 625 023. rmiTOTHE ADDITIONAL DISTRICT JUDGE, DINDIGUL.Copy toTHE SECTION OFFICER, JUDICIAL SECTION, MADURAI BENCH OF MADRASHIGH COURT, MADURAI. ORDER IN C.M.P.(MD)No.7505 of 2022inA.S.(MD)No.101 of 2016 Date :21/04/2025NBF/SAR/09.05.2025 7P/3C Madurai Bench of Madras High Court is issuing certified copies in this format from 17/07/2023 7/7