SMT. SARADA AND ORS.

MANIKKOTH KOMBRA RAJENDRAN

APRIL 22, 1996

[K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

Code of Civil Procedure, 1908 :

Order 41, Rule 27-Additional evidence-Filing of-Property sold as a C collateral security-Subsequent agreement mentioning receipt of consideration-Appellate court refusing to take the document as additional evidence-Held : Appellate court ought to have received the additional evidence and considered the effect thereof by either recording the evidence of the paities or calling a finding on it fi'om the trial cowt-Without that it would not be possible to render fair justice between the parties-Appeal remitted D back to the appellate court to follow the procedure and dispose of the appeal in accordance with law.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7739 of 1996.

From the Judgment and Order dated 4.8.95 of the Kerala High Court in S.A. No. 886 of 1990-E.

B.Y. Deepak and G. Prakash for the Appellants.

The following Order of the Court was delivered :

Though the respondent has been served, he is not appearing either in person of through counsel.

Leave granted.

The admitted position is that one T. Sekharan was the owner of the property. He sold 17 cents of land under Ex. A-2, dated 14.7.1982. He was impleaded as the first defendant in the suit laid for recovery of the possession on the ground that after the sale there was an contemporaneous agreement to permit the respondent to remain in possession for a period H of four months and on expiry thereof, he was to surr nder his possession. 624

SARADA v. MANIKKOTH KOMBRA RAJENDRAN 625

Since he had not surrendered the possession, notice Ex. A/4, was issued A on December 10, 1982 and on his failure to vacate the same, suit was laid for recovery of possession. Since the first defendant died, the appellants were brought on record as party defendants to the suit. It is their case that the respondent is a money-lender and the property sold was to obtain a loan and he had obtained the sale deed as a collateral security for repayment of the loan of a sum of Rs. 20,000. After the dispute had arisen, there was an agreement entered by the first defendant and the respondent in the presence of the Sub-Inspector of Police which formed part of the agreement, which reads as under :

"Agreement executed BETWEEN 'A' PARTY, Rajendran, 42 C years, son of Manikooth Kombra Chalil Damudaran. Kacheri Amson, AND 'B' Party, Sekharan, aged 60 years, son of Thaikandy Gopalaln, Amarasseri Amson Desom.

Whereas A party had given a complaint before the Kakkur Police Station upon the B Party not acting in accordance with the D agreement whereby the Parammel property owned by B party had bee_n sold to A party, and whereas both parties spoke under the mediation of the station Sub-Inspector; and

Whereas the parties have jointly agreed to the terms stated E bel.ow and have accordingly executed this agreement in the . presence of the witnesses who have signed below this the 4th day 'ofJan:uary, 1983 and retained one copy each of this agreement.

: It is agreed - ·

. .. That B party shall-pay A party Rs. 35,000 (Rupees Thirty Five Thousand only) on or before and that the Parammal property in

I . the possession of .A party shall then he given to B party at his

expense .. if the B party acts contrary thereto, he should vacate and hand ver the ab0ve said Pararnmel property to A party. Further, G A Party will have the right against B party to take steps in accordance .with law."

The trial Court decred the suit accepting that Ex. A-2 is a sale and the appellants are liable to surrender possession as sub-lessees. In the

ap_peal, the appellants raised the i_ssue regarding the agreement referred to H

626 Sl IPRFtl' CUURT REPORTS [ J9%J SUPP. l S.L.R.

A hcrcinbefl1r~ and ought to pl:.tce this document as an additional evidence under Order l, Ruic 27 CPC etc. The appellate Court rejected the same.

In the scun<l appeal, the 1-Egh Court has dbn1i.'-.sed the appeal conrinning the decree fur possession. Thu\ this appeal by special leave.

Since it is the case of the appellants that T. Sckharan h; id sold the B property as a collateral security and \Vhcn the agrl'e111ent subsequently entered intn clearly mentioned receipt of Rs. 3.'1))00 as consideration of the property, it Wlllll<l indicate that the parties had the sale Ex. A-l is only a> ''collateral security. Under these circun1stanccs, 1hc appellate l'ourt ought to have received the agrccn1cnt datl'.d Januur; .+. 1983 as additional C t:vi<le-ncc a11d \.1lnsidcrcd the effect thereof by either recording the cvi<lencl' ,1f the part iv, :f calling_ ;1 finding: in this bt.:half fro1n the trial lourt. Without

th u...:ipt nl th.· cl<iclJ:TILfll and the ~\.i<lcncc in cun.'>i<ll,_'.ration Lhcrcof, it \\.'OU Id n, il he pt~\:-iihk !d render fair ju:.tice hct\.vcen the partit:s.

fl _ :1ppcal i:. aCl\)rdingly allo\\'L'!.l rTc judgmenl and decree of the D appellate tourt <.t\ \Vcll as the ~Iigh ('nun,;... \lJ aside and the <1ppcal i~

fL'll]i!.tcd tn the appcllatt: ('ourt LtJ fn!lu\\' tht: prl1ccdure indicltl'.d

h1 ·, cir~Jbn\'~ and <li.<..pusc nf the <tPf'l'; tl dCcording lo hnv. No custs.

'.J. ' Appeal allllwcu.