Kalyani v. Sasindran Pillai and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **FRIDAY, THE 2ND DAY OF DECEMBER 2016/11TH AGRAHAYANA, 1938** ## **OP(C).No. 969 of 2014 (O)** **-------------------------I.A. NO.1196/2013 IN AS. NO.27/2007 OF SUB COURT, CHERTHALA. ......** **PETITIONER:** **---------------------** **KALYANI, W/O. ARAVINDAKSHAN, KIZHAKKEDATHU HOUSE, AROOR, CHERTHALA, PIN-688 534.** **BY ADVS.SRI.V.L.SHENOY, SRI.L.JAYAWANTH.** **RESPONDENTS:** **------------------------** **1. SASINDRAN PILLAI, S/O.LATE KUMARA PILLAI, KIZHAKKEDATHU HOUSE, AROOR-688 534, ALAPPUZHA DISTRICT.** **2. SIVADASAN PILLAI, S/O.LATE KUMARA PILLAI, KIZHAKKEDATHU HOUSE, AROOR-688 534, ALAPPUZHA DISTRICT.** **3. SADANANDAN PILLAI, S/O.LATE KUMARA PILLAI, KIZHAKKEDATHU HOUSE, AROOR-688 534, ALAPPUZHA DISTRICT.** **BY ADVS. DR.V.N.SANKARJEE, SRI.S.SIDHARDHAN, SRI.PRATHAP. S.R.K., SMT.R.UDAYA JYOTHI.** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** rs. ## **OP(C).No. 969 of 2014 (O)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **P1:COPY OF THE MEMORANDUM OF APPEAL AS. 27/2007 OF THE SUB COURT, CHERTHALA.** - **P2:COPY OF THE PETITION IA. NO.1196/2013 IN AS.27/2007 OF THE SUB COURT, CHERTHALA.** - **P3:COPY OF THE OBJECTION IN IA. NO.1196/2013 IN AS. 27/2007 OF THE SUB COURT, CHERTHALA.** - **P4:COPY OF THE ORDER DTD 14/03/2014 IN IA NO. 1196/2013 IN AS. 27/2007 OF THE SUB COURT, CHERTHALA.** ## **RESPONDENT'S EXHIBITS:-** - **EXT.R1A COPY OF THE PLAINT DATED 06/10/2005 IN O.S. NO.604/2005 OF THE MUNSIFF COURT, CHERTHALA.** - **EXT.R1B COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANT IN OS. NO.604/2005 OF THE MUNSIFF COURT, CHERTHALA.** - **EXT.R1C COPY OF THE JUDGMENT DATED 15/03/2007 IN O.S. NO.604/2005 OF MUNSIFF COURT, CHERTHALA.** - **EXT.R1D COPY OF THE RECEIPT OF PAYMENT DATED 19/03/2014.** **EXT.R1E COPY OF THE COMMISSION REPORT DATED 17/10/2005 IN O.S. NO.604/2005 OF THE MUNSIFF COURT, CHERTHALA.** **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **P.SOMARAJAN, J. ======================= O.P.(Civil).No.969 of 2014 ======================= Dated this, the 02[nd] day of December, 2016.** ## **J U D G M E N T** Original Petition filed under Article 227 of the Constitution of India, by the defendant/respondent in the I.A.No.1196/2013 in A.S.No.27/2007 of the Sub Court, Cherthala. The said application in I.A.No.1196/2013 was filed for appointing a Commission in the First Appellate stage. According to the original petitioner, the said application was submitted overlooking the fact that in the trial court, an earlier Commission was appointed who in turn, filed his report and Mahazar and hence, there is no necessity to issue a second Commission for that purpose. Secondly, on the reason that an application under Order XXVI Rule 10 was filed in the Appellate Court overlooking Order XLI Rule 27 CPC, which is the relevant provision in which either of the party in the Appellate stage can O.P.(C).No.969 of 2014 : 2 : adduce additional evidence in the Appellate stage. It was also submitted that this is the only enabling provision in the First Appellate stage to adduce additional evidence provided that they should satisfy the requirement engrafted therein, the exercise of due diligence etc. It was also _inter alia_ contended by the petitioner that issuance of a second commission without setting aside the earlier one would result in conflicting reports. It was also submitted that a period of 11 years already lapsed from the date of issuance of the first Commission and hence, there may be changes in the property. 2. So, the first question to be considered in this O.P. is whether the lower Appellate Court has exercised its jurisdiction in its correct perspective in so far as the application of Order XLI Rule 27 read with Order XXVI Rule 10 C.P.C. It is contended by the learned Senior Counsel appearing for the petitioner that unless there is an application under Order XLI Rule 27 from the party O.P.(C).No.969 of 2014 : 3 : concerned, no additional evidence can be admitted or even permitted as there is an implied bar under Order XLI Rule 27 C.P.C. It was also submitted that instead of embarking upon order XXVI Rule 10 C.P.C., the party ought to have exhaust the remedy under Order XLI Rule 27 C.P.C. so as to have a second Commission or a further Commission as the case may be. Order XLI Rule 27 C.P.C. is extracted below for reference: _“_ _**27. 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_ > _1[(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_ O.P.(C).No.969 of 2014 : 4 : _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) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”_ _(emphasis supplied)_ Order XLI Rule 27(b) is the enabling provision by which the Appellate Court can require any document to be produced or any evidence to be examined to enable it to pronounce the judgment or for any other substantial cause. So it is well within the power of the First Appellate Court to permit any evidence to be adduced even without an application from the party, when it was found necessary to pronounce a judgment or for any other substantial cause. It is within the jurisdiction of the court to require any document to be produced or cause to be produced. It is really the power vested with the Appellate O.P.(C).No.969 of 2014 : 5 : Court even without an application from the party concerned either the plaintiff or the defendant, appellant or the respondent as the case may be. So, it is well within the jurisdiction of the First Appellate Court to permit additional evidence even without satisfying the ingredient which requires under Rule 27 of Order XLI CPC. In fact clause (b) of Rule 27(1) is an exception to Clause (a) (aa) to Rule 27(1) of Order 41. In both the cases i.e the situation covered under Clause (a), (aa), and (b) of Rule 27(1), the appellate court is bound to record its reasons by virtue of sub rule 2 of Rule 27. In the present case, a second commission was appointed for the purpose of measuring out the property and to locate the same as the identity was also in dispute. The said reason is sufficient to attract Clause (b) of Rule 27 of Order XLI CPC. 3. A Division Bench of this Court reported in _**Swami Premananda Bharathi v. Swami Yogananda**_ O.P.(C).No.969 of 2014 : 6 : _**Bharathi [(1985 KLT 144)**_ deprecated the practice of issuing commission one after another. The Madras High Court condemned the practice of appointing successive commissioners in _**Thottama v. C.S. Subramaniyyan (AIR 1922 Madras 219)**_ . Going by the various decisions, including the decision rendered by the Patna High Court in _**Shib Charan Sahu and others v. Sarda Prasad and another (AIR 1937, Patna 670)**_ wherein a different view was taken, it is clear that the legal position was so far not settled. 4. It was _inter alia_ contended by the petitioner that in the trial stage, a Commission was appointed for the purpose of making local investigation with respect to nature and lie of the property and all other attending factors in respect of the plaint schedule property and that a report was submitted and it was accepted and acted upon by the lower court while rendering the judgment which is under challenge in the First Appellate stage. It O.P.(C).No.969 of 2014 : 7 : was also submitted that almost 11 years already lapsed from the date of issuance of the first report and a second Commission for evaluating the very same matters would not serve any purpose rather than it would create conflicting reports of Commissioner. Hence, it is not at all advisable to have a second report on the matters already covered by the first report submitted by the Commissioner. There is some weight in the argument advanced by the learned counsel that conflicting report may cause difficulty in the discharge of justice, especially, when a second report is called for after the expiry of more than 12 years. So, it is not at all advisable to have a second report on the matters already covered by the first report submitted. 5. It was submitted by the learned counsel for the respondents that the main prayer in the second Commission application filed in the First Appellate stage is to measure the property with the help of a surveyor so as O.P.(C).No.969 of 2014 : 8 : to identify its location and measurement etc. and that the earlier Commission report was issued only for the purpose of conducting local investigation. In the said circumstances, I am of the view that the matters to be elucidated by the Commissioner appointed by the First Appellate Court can be limited for the purpose of measurement of property with the help of surveyor and preparation of plan, report and Mahazar. The order of the First Appellate Court will stand as modified to that extent. Original Petition allowed in part accordingly. Sd/- **P.SOMARAJAN, JUDGE** Bb/07/12/2016 _[True copy] P.A to Judge_