IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2010 CORAM THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMAN C.M.A. No.704 of 2010 and M.P.Nos.1 and 2 of 2010 1.M.Mani 2.M.Vinayagam ... Appellants/plaintiffs vs. Cuddalore Municipality, rep.by its Commissioner, Having Office at Municipal Office, Cuddalore ... Respondent/1st defendant Prayer: Civil Miscellaneous Appeal against the Judgement and decree dated 29.1.2010 passed by the I Additional Subordinate Judge, Cuddalore, in A.S.No.106 of 2006, setting aside the judgement and decree dated 10.10.2005 passed by the Principal District Munsif, Cuddalore, in O.S.No.463 of 2004. For Appellants :: Mr.T.R.Rajagopalan Senior Counsel for Mr.T.R. Rajaraman For Respondent :: Mrs.Bhavani Subbarayan J U D G M E N T The plaintiffs are the appellants before this Court challenging the judgment of the appellate Court dated 29.1.2010 passed in A.S.No.106 of 2006, setting aside the judgment dated 10.10.2005 passed by the Principal District Munsif, Cuddalore, in O.S.No.463 of 2004 and remanding the matter once again under Order 41 Rule 23 and 23-A of CPC, with a direction to receive the additional documents filed by the respondent/first defendant and to frame issues as stated in the judgment, apart from what had been already framed by the trial Court and to give opportunity to the parties to let in their evidence and pass orders in accordance with law, within three months 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 their title to the suit property and alternatively for recovery of possession of the suit property. 3. It is seen from the narration of facts by the trial Court that originally, one Muthukumarasamy Chettiar, the father of the plaintiffs, formed a layout under the name 'Chairman Govindasamy Nagar'. This was approved by the Deputy Director of Town and Country Planning(S) Salem and Cuddalore as early as 1975. The plaintiffs filed the copy of the approved layout, which showed that the suit property was earmarked for the public using it as 'park'. 4. The contention of the plaintiffs is that the earmarked portion for 'park' was originally owned by the plaintiff's father Muthusamy Chettiar. After his demise on 1.3.2002, the plaintiffs are owning the same and the same continued to be owned by the owners maintaining the reserved area as park. Hence, when the title and possession of the suit property continued to be with the plaintiffs after their father Muthusamy Chettiar, the original owner and maintained as a park, the same need not be handed over to the Government or the Municipality and accordingly, the plaintiffs state that the condition while granting the approval to the layout to maintain the open area as park for public use was never violated by the plaintiffs and that the respondents have no auhtority to change its character to put it into different use, thereby change the very character of the reserved area. 5. The cause of action for the suit arose when in the area earmarked for 'park', the respondent/first defendant started constructing a noon meal centre, a purpose different from what it was reserved for. The respondent/first defendant committed trespass on 6th December 2003 when it started putting up construction for noon-meal centre, with the financial assistance from MLA Fund. Immediately, the plaintiffs caused a notice to be served on the respondent/first defendant. 6. Admittedly, the construction which was sought to be put up through MLA fund was injuncted upon by the order passed by this Court and the construction had not taken place since then. 7. In response to the claim of the plaintiffs, the respondent/first defendant filed the written statement, wherein, it was admitted that the suit property was earmarked for 'park' in the approved layout; however, they denied the contention of the plaintiffs that the plaintiffs were in possession of the suit property. It is also admitted in the written statement that the layout was approved as early as 1975. In paragraph 6 of the written statement, 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 of the Cuddalore M.L.A's fund. It is also stated that the construction of noon-meal centre is also for a public purpose and for the welfare of the Society. Consequently, there is no interference with the purpose for which the area was reserved. 8. It is further stated in the written statement that the suit property allotted for public use has been properly utilized for public purpose by the respondent/first defendant, over which the plaintiffs had no right or title. It is also stated that there was no need for creation of any document for the said purpose. Having lost their title, the plaintiffs are not entitled to direct the respondent/first defendant to produce any document as regards the takeover of the suit property. 9. In the light of the above, the respondent/first defendant sought for dismissal of the suit. 10. The trial Court framed the following issues for consideration: @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;wpl chpika[z;lh> 3/thjpfs; tHf;fpy; nfhhpatz;zk; braYWj;Jf;fl;lis ghpfhuk; bgw;wpl chpika[z;lh> 4/1975k; Mz;oy; 1k; vjph;thjp jhth brhj;jpd; RthjPdj;ij vLj;Jf;bfhz;L mJKjw;bfhz;L RthjPdj;jpy; ,Ue;J tUtjhf TWtJ cz;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 using the area as a noon-meal centre instead of using it as a 'park'. The trial Court also pointed out that even though an application was made on behalf of the plaintiffs calling upon the respondent/first defendant to produce necessary documents as regards the approval granted to 'Chairman Govindasamy Nagar', in the reply filed by the respondent/first defendant on 17.8.2005, the respondent/1st defendant herein had taken a stand that all the documents were already destroyed. Hence, accepting the plea of the plaintiffs and as per the decision reported in 2002-3-L.W. 180 (E.Elumalai and 11 others v. Corporation of Madras and others), the trial Court held that the failure to produce the document on the ground of destruction went against the contention of the respondent herein that the suit property was handed over by reason of gift deed. The trial Court further held that the area reserved for 'park' has to be maintained as such by the respondent/first defendant, but they attempted to construct a noon-meal centre and accordingly, the trial Court decreed the suit in favour of the plaintiffs. 12. Aggrieved by the said judgment, the respondent/Cuddalore Municipality filed the appeal in A.S.No.106 of 2006 before the Additional Subordinate Judge, Cuddalore. 13. In the course of the proceedings, the respondent herein filed the I.A. to receive the additional documents. The appellate Court formulated the following questions for consideration: "1. Whether I.A.No.318 of 2008 can be allowed and the documents filed by the 1st defendant can be received? 2. Whether the suit is barred by the law of limitation? 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 pointed out that ignoring the technicalities in receiving the additional documents, the I.A. merited consideration. Since the title to the suit property is an issue for decision before the Court, satisfied of the reasons, the Court allowed the said petition to permit the respondent/first defendant to file additional documents and thereby remanded the matter to the Principal District Munsif Court, Cuddalore, for fresh trial and gave opportunity to the respondent/first defendant to submit those documents. Aggrieved by the same the present appeal by the plaintiff. 15. Learned Senior counsel appearing for the appellants/plaintiffs took me through the provisions of Order 41 Rule 23 and 23-A of C.P.C., and contended that without even considering the necessity and relevancy of such an application to https://hcservices.ecourts.gov.in/hcservices/ receive additional evidence in this case, the appellate Court committed a serious error in mechanically allowed the I.A. and remanding the case to the trial Court for a decision. 16. Learned senior counsel placed reliance on the decisions of the Supreme Court reported in (2002) 2 SCC 686 (P.Purushottam Reddy and another Vs. Pratap Steels Ltd., and (2001) 1 SCC 309 – (Mahavir Singh and others Vs. Naresh Chandra and another), as to the appellate Court's jurisdiction to admit additional evidence and to order remand in terms of Order 41 Rule 23 and 23A and 47 of CPC. He contended that without even considering the merits of the trial court 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 at the appeal stage and the stage at which such decision would arise and ordering of remand by the appellate Court have come up for consideration before the Apex Court time and again. Dealing with the 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 Court pointed out as follows: "10. Section 107 of the Code of Civil Procedure empowers the appellate court “to take additional evidence or to require such evidence to be taken,” “subject to such conditions and limitations as may be prescribed”. Rule 27 of 0. 41 of the Code of Civil Procedure prescribes the conditions and limitations in the matter. The rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. It then proceeds to lay down two classes of cases where the appellate court may allow additional evidence to be produced. One class is where the Court appealed from has refused to admit evidence which ought to have been admitted. The other class is where the appellate court requires such additional evidence for itself — either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that when additional evidence is allowed to be produced by an appellate court, the Court shall record the reason for its admission. " "13. It is very much to be desired that the courts of https://hcservices.ecourts.gov.in/hcservices/ appeal should not overlook the provisions of clause (2) of the Rule and should record their reasons for admitting additional evidence. We are not prepared, however, to accept the contention of the appellant that the omission to record the reason vitiates the admission of the evidence. Clearly, the object of the provision is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced-whether this was done on the ground (i) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause. Where a further appeal lies from the decision of the appellate court such recording of the reasons is necessary and useful also to the Court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the court below. The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory. For, it does not seem reasonable to think that the legislature intended that even though in the circumstances of a particular case it could be definitely ascertained from the record why the appellate court allowed additional evidence and it is clear that the power was properly exercised within the limitation imposed by the first clause of the Rule all that should be set at naught merely because the provision in the second clause was not complied with. It may be mentioned that as early as 1885 when considering a similar provision in the corresponding section of the Code of 1882 viz. Section 586, the High Court of Calcutta held that this provision for recording reasons is merely directory and not imperative Gopal Singh v. Jhakri Rai 4. We are aware of no case in which the correctness of this view has been doubted. It is worth noticing that when the 1908 Code was framed and Order 41 Rule 27 took the place of the old Section 568, the legislature was content to leave the provision as it was and did not think it https://hcservices.ecourts.gov.in/hcservices/ necessary to say anything to make the requirement of recording reasons imperative. It is true that the word “shall” is used in Rule 27 (2); but that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission. " Hence, the appropriate time at which the Court shall exercise the discretion is only when on examining the evidence available on record that the Court finds it difficult in pronouncing the judgment in a satisfactory manner. 18. The Apex Court further pointed out that the jurisdiction to admit additional evidence is to be seen not only from the point of pronouncing the judgment, but also for any other substantial cause - it being that "the Court still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner". Referring to the decision of the Privy Council in 58 IA 254, the Apex Court pointed out "17. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim case 5 the Privy Council while discussing whether additional evidence can be admitted observed: “ It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ‘when on examining the evidence as it stands, some inherent lacuna efect becomes apparent’.” 18. As the Privy Council proceeded to point out: “ It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the https://hcservices.ecourts.gov.in/hcservices/ requirement of the Court upon its appreciation of the evidence as it stands.” 19. In the decision reported in (2008) 1 MLJ 1253 – (K.R.Mohan Reddy Vs. Net Work Inc.), the Apex Court reiterated the above statement of law that for exercising the jurisdiction under Order 41 Rule 27, C.P.C., the Appellate Court must arrive at a finding as to the necessity of admitting additional evidence. Referring to the decision reported in AIR 2006 SC 1864 (The State of Gujarat and Anr. Vs. Mahendrakumar Parshottambhai Desai (Dead) by L.Rs.), the Apex Court held that the appellate Court should not pass an order so as to patch up the weakness in the evidence of the unsuccessful party before the trial Court and the provisions do not entitle the appellate Court to let in evidence only for the purpose of pronouncement of the judgment in a particular way. The Apex Court further held "the ability to pronounce judgment is to be understood as the ability to pronounce judgment satisfactorily to the mind of the Court. But mere difficulty is not sufficient to issue such direction. While saying so, however, we do not mean that the Court at an appropriate stage would be precluded from considering the applicability of Clause (b)" - Refer (2008) 1 MLJ 1253 – (K.R.Mohan Reddy Vs. Net Work Inc.) for similar such statement of law by the Apex Court. 20. Hence, where the appellate Court decides to admit additional evidence, the Court must act within the scope of Order 41 Rule 27, C.P.C. Referring to the decision of the Privy Council in Kessowji Issur Vs. Great Indian Peninsula Rly. Co, in the decision reported in (2001) 1 SCC 309 (Mahavir Singh and others Vs. Naresh Chandra and another), the Apex Court held that Order 41 Rule 27, C.P.C. can be looked at for taking additional evidence when: (i) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (ii) 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 (iii) 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." 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 decision before the appellate Court is the application of Order 41 Rule 27, C.P.C., as to whether such additional evidence, oral or documentary allowed, is to be produced before the appellate Court or the trial Court to receive such evidence and send it back to the appellate Court or to order remand to the trial Court for fresh disposal. In the decision reported in (2002) 2 SCC 686 (P.Purushottam Reddy and another Vs. Pratap Steels Ltd.), the Apex Court pointed out that Order 41 Rule 23-A of CPC provides for a remand by a Court of appeal, only under the stated circumstances, namely, if the trial Court disposed of the case otherwise than on a preliminary issue and the decree is reversed in appeal and a retrial is considered necessary. On the twin conditions being satisfied, the appellate Court can exercise the power of remand under Order 41 Rule 23-A, C.P.C., only in exceptional cases. When the case is not covered either by Order 41 Rule 23 or Rule 23-A or Rule 25, C.P.C., an appellate Court should be circumspect in ordering a remand for the simple reason that an unwarranted order of remand gives the litigation an undeserved lease of life and therefore, it must be avoided. 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 that the expression 'to enable it to pronounce judgment' refers to a lacuna or defect in the evidence as it stands, which warrants admission of additional evidence. 22. Hence, in cases where the appellate Court finds that the materials on hand are not sufficient to definitely come to a conclusion or that the judgment and decree of the trial Court is erroneous on fact that receipt of additional evidence is required for doing substantial justice, that the matter should be decided afresh by the trial Court, then alone the Court can admit additional evidence and order a remand for fresh disposal in the light of the additional evidence produced by the aggrieved party. The appellate Court shall not, as a matter of course, admit additional evidence either at the instance of the plaintiffs or the defendant even before considering the trial Court's judgment. Learned senior counsel pointed out that the default of the party in not producing an evidence is no ground for admitting the evidence and to order a remand. 23. Thus, the question of remand, in all circumstances, would have to be exercised with caution, subject only if and when the evidence on material are not sufficient enough to enable the Court to come to a decision on an issue. The sufficiency of the evidence has 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 the mind of the Court delivering it. Hence, unless and until the appellate Court undertakes the exercise of considering the judgment of the trial Court, the decision of an appellate Court to receive additional evidence and thereby remand the case even before the stage of looking into the decision, would be a case of putting the cart before the horse. Dealing with Section 107(d) and Order 41 Rule 27 of C.P.C., in the decision reported in (2001) 1 SCC 309 (Mahavir Singh and others Vs. Naresh Chandra and another), the Apex Court pointed out that the parties are not, as a matter of right, entitled to the admission of additional evidence and it is purely a matter of discretion which has to be exercised judiciously and sparingly. Hence, the stage at which such an exercise would arise, certainly demands consideration of the Court that even before the decision of the trial court is tested, the appellate Court cannot decide on the merits of the I.A. to receive the additional evidence to order a remand. Going by the law declared by the Apex Court, in the decision reported in 2007 (2) CTC 49 (Kannathal and 4 Others Vs. Arulmighu Kanniammal Karuppasamy Thirukoil) relied on by the learned senior counsel, unless the appellate Court has considered the judgment of the trial Court on merits so as to form a view as to the necessity of admitting additional evidence, the decision to remand the matter back on receipt of an I.A. as a matter of course by hearing the party seeking the direction to file the additional evidence, would be in violation of Order 41 Rule 23 and 23-A of C.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 is evident 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 the provisions of Order 41 Rule 23 and 23-A of C.P.C. and the law laid down by the Apex Court. 25. In the light of the above, I have no hesitation in setting aside the order passed by the appellate Court remanding the case to the trial Court for considering the additional documents filed by the 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 of the plaintiffs and this Court, by order dated 19.12.2008, allowed the said C.R.P. The net result is that the Court below has to consider the relevancy of the I.A. with reference to the merits of the judgment in the suit. However, the present exercise by the appellate Court is no better than what was originally done by it. A reading 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 for consideration and thereafter immediately considered the merits of the I.A. only to hold that in the interest of justice, to avoid multiplicity of the proceedings and to afford an opportunity to the defendant, the I.A. had to be allowed. As to the necessity of a remand, the Court below pointed out to the plea of limitation raised by the defendant and that the cause alleged by the plaintiff was false and imaginary. In considering the said objection, all that the appellate Court observed was that having regard to the decision reported in 2004 Civil LJ 362, it was necessary that in the interest of justice, issues were to be framed and parties allowed to lead