IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 20-07-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.695 of 2009 and M.P.No.1 of 2009 and M.P.No.1 of 2010 P.Rajagopal .. Appellant/Appellant/Defendant Versus P.Srinivasan .. Respondent/Respondent/Plaintiff PRAYER: Appeal against the judgment and decree, dated 27.3.2008, made in A.S.No.143 of 2007, on the file of the Principal Subordinate Judge, Salem, confirming the judgment and decree, dated 4.1.2007, made in O.S.No.70 of 2006, on the file of the Additional District Munsif Court, Salem. For Appellant : Mr.P.Jagadeesan For Respondent : Mr.T.S.Vijayaraghavan J U D G M E N T This second appeal has been filed against the judgment and decree, dated 27.3.2008, made in A.S.No.143 of 2007, on the file of the Principal Subordinate Court, Salem, confirming the judgment and decree, dated 4.1.2007, made in O.S.No.70 of 2006, on the file of the Additional District Munsif Court, Salem. 2. The defendant in the suit is the appellant in the present second appeal. The plaintiff in the said suit is the respondent herein. The suit had been filed praying for a decree of permanent injunction restraining the defendant and his men from, in any way, disturbing the peaceful possession and enjoyment of the suit property by the plaintiff and for costs. 3. The trial Court had decreed the suit, as prayed for by the plaintiff, by its judgment and decree, dated 4.1.2007. The appeal filed by the appellant, on the file of the Principal Subordinate Court, Salem, in A.S.No.143 of 2007, had been dismissed, by its judgment and decree, dated 27.3.2008, confirming the judgment and decree of the trial Court, dated 4.1.2007. Hence, the present second appeal. https://hcservices.ecourts.gov.in/hcservices/ 4. At this stage of the hearing of the second appeal the main contention of the learned counsel appearing on behalf of the appellant is that the lower Appellate Court had grossly erred in not considering the additional evidence adduced before the First Appellate Court, marked as Exhibits B-11 to B-17. The said documents had not even been referred to by the learned Principal Subordinate Judge, Salem. In such circumstances, this Court may be pleased to set aside the judgment and decree of the First Appellate Court, dated 27.3.2008, made in A.S.No.143 of 2007, and remit the matter back to the file of the Principal Subordinate Court, Salem, directing the said Court to pass a judgment and decree, afresh, taking into consideration the evidence already on record, as well as the additional evidence adduced by the appellant, before the said Court, by way of Exs.B-11 to B-16, which had been allowed by an order, dated 10.1.2008, made in I.A.No.3 of 2008 and Ex.B-17, which had been allowed by an order, dated 10.3.2008, made in I.A.No.28 of 2008. 5. The learned counsel appearing on behalf of the respondent had submitted that the failure of the First Appellate Court to consider the additional evidence adduced on behalf of the appellant, by way of Exs.B-11 to B-17, would not make any material difference to the outcome of the appeal and therefore, it may not be necessary for this Court to set aside the judgment and decree of the First appellate Court, dated 27.3.2008, made in A.S.No.143 of 2007, and to remit the matter back to the said Court for giving its findings, based on the exhibits marked as Exs.B-11 to B-17. 6. In view of the submissions made by the learned counsels appearing on behalf of the appellant, as well as the respondent, it is seen that the First Appellate Court had, by its orders, dated 10.1.2008 and 10.3.2008, made in I.A.No.3 of 2008 and I.A.No.28 of 2008, respectively, had permitted the appellant to mark certain documents, said to be in his favour, as Exs.B-11 to B-17. However, from the judgment and decree of the First Appellate Court, dated 27.3.2008, made in A.S.No.143 of 2007, it can be seen that the said documents had not been considered by the said Court. 7. In view of the submissions made by the learned counsel appearing on behalf of the appellant that the appreciation of the evidence available on record, by way of Exs.B-11 to B-17, would have substantially influenced the outcome of the first appeal and in view of the fact that no serious objections had been raised by the learned counsel appearing on behalf of the respondent, this Court finds it appropriate to set aside the judgment and decree of the First Appellate Court, dated 27.3.2008, made in A.S.No.143 of 2007, without going into the merits of the matter, and to remit the matter back to the file of the First Appellate Court, with the direction that the Principal Subordinate Court, Salem, should take into consideration Exs.B-11 to B-17 and to pass the judgment and decree, on merits and https://hcservices.ecourts.gov.in/hcservices/ in accordance with law, within a period of four months from the date of receipt of a copy of this order. The second appeal is ordered accordingly. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar csh To 1) The Principal Subordinate Judge, Salem 2) The Additional District Munsif, Salem. 3. The Section Officer, VR Section, High Court, Madras. + 1 cc to Mr.P.Jayadeesan, Advocate Sr.52303 + 1 cc to Mr.T.S. Vijayaraghavan, Advocate Sr.52272 S.A.No.695 of 2009 GGK(CO) EU 5.4.13 https://hcservices.ecourts.gov.in/hcservices/