1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 04.11.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION No.1352 of 2011 and MISCELLANEOUS PETITION No.1 of 2011 Karupasamy .. Petitioner Vs. Lakshmiammal .. Respondent Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 08.06.2011 passed in Interlocutory Application No.32 of 2011 in Appeal Suit No.42 of 2009 by the Sub Court, Kovilpatti. For Petitioner : Mr.S.Pon Senthil Kumaran ORDER The order dated 08.06.2011 passed in Interlocutory Application No.32 of 2011 in Appeal Suit No.42 of 2009 by the Sub Court, Kovilpatti is being challenged in the present Civil Revision Petition. 2. The revision petitioner herein as plaintiff has instituted Original Suit No.64 of 2008 on the file of the District Munsif Court, Kovilpatti for the reliefs of declaration and recovery of possession, wherein the present respondent has been shown as sole defendant. The trial Court has dismissed the suit. Against the Judgment and decree passed by the trial Court, Appeal Suit No.42 of 2009 has been filed on the file of the Court below. The Court below has allowed the same. Against the Judgment and decree passed by the Court below in Appeal Suit No.42 of 2009, Second Appeal No.775 of 2010 has been filed on the file of the High Court. The High Court has allowed the same and thereby set aside the Judgment and decree passed in Appeal Suit No.42 of 2009 and remitted the matter to the file of the Court below. During pendency of the same, the present petition has been filed under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 so as to examine the witness found in Ex.B.1. The Court below has allowed the same. Against the order passed by the Court below, the present Civil Revision Petition has been preferred at the instance of the appellant/ respondent as revision petitioner. 3. The learned counsel appearing for the revision petitioner has contended that the present petition has been filed under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 and no valid reasons have been given in the present petition for the purpose of allowing the same and https://hcservices.ecourts.gov.in/hcservices/ 2 the Court below without considering the provisions of Order XLI, Rule 27 of the Code of Civil Procedure, 1908 has erroneously allowed the present petition and therefore the order passed by the Court below is liable to be interfered with. 4. In the present petition, it has been specifically prayed to give necessary permission to examine the witness found in Ex.B.1. The present petition has been filed under Order XLI, Rule 27 of the Code of Civil Procedure, 1908 and the same reads as follows: "Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission". 5. Even a cursory look of the said provision made clear that in the appellate forum, the parties are not entitled to adduce both oral and documentary evidence, unless exceptions mentioned therein are in existence. At the most, the present petition should come under sub- clauses (a) and (aa). The Court below without considering the provisions of Order XLI, Rule 27 of the Code of Civil Procedure, 1908 has simply allowed the petition. To put in short, the Court below has failed to look into the present petition in consonance with the conditions mentioned in Order XLI, Rule 27 of the Code of Civil Procedure, 1908. Under the said circumstances, this Court is of the view to set aside the order passed by the Court below and remit the matter to its file for deciding the present petition on the basis of the provisions of Order XLI, Rule 27 of the Code of Civil Procedure, 1908. 6. In fine, this Civil Revision Petition is allowed without costs at the stage of admission and the order passed in Interlocutory Application No.32 of 2011 in Appeal Suit No.42 of 2009 by the Sub Court, Kovilpatti is set aside and the petition filed in Interlocutory Application No.32 of 2011 in Appeal Suit No.42 of 2009 is remitted to the file of the Sub Court, Kovilpatti. The Sub Court, Kovilpatti is strictly https://hcservices.ecourts.gov.in/hcservices/ 3 directed to dispose of Interlocutory Application No.32 of 2011 in Appeal Suit No.42 of 2009 in consonance with the provisions of Order XLI, Rule 27 of the Code of Civil Procedure, 1908. Consequently, connected Miscellaneous Petition is closed. Sd/- Assistant Registrar (crl.Side) /True Copy/ Sub Assistant Registrar To The Subordinate Judge, Kovilpatti. Smn GH : 23.11.2011 : 3p/2c C.R.P(PD)(MD)No.1352 of 2011 and M.P(MD)No.1 of 2011 https://hcservices.ecourts.gov.in/hcservices/