Thomas Varghese v. Sivadasan and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN MONDAY, THE 5TH DAY OF NOVEMBER 2012/14TH KARTHIKA 1934 FAO.No. 243 of 2012 () ---------------------AS.69/2009 of SUB COURT, PERUMBAVOOR OS.52/2006 of MUNSIFF COURT, PERUMBAVOOR APPELLANT/1ST RESPONDENT/1ST DEFENDANT: --------------------------------------------------- THOMAS VARGHESE, AGED 52 YEARS S/O.VARGHESE, MEYKAMKUNNEL HOUSE, VILANGU KARA KIZHAKKAMBALAM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT. BY ADV. SRI.P.THOMAS GEEVERGHESE RESPONDENTS/APPELLANT & 2ND -8TH RESPONDENTS/PLAINTIFF & 2ND -8TH DEFENDANTS : ------------------------- 1. SIVADHASAN, AGED 55 YEARS S/O.NARAYANAN, NOW RESIDING AT EDATHIKKARA HOUSE THOTTAKKATTU KARA, AMARAMPALAM VILLAGE MALAPPURAM DISTRICT. 2. PRABHAKARAN, AGED 61 YEARS S/O.KALYANI, THOZHUTHUNKAL HOUSE, CHOORAKKOD KARA PATTIMATTAM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT. 3. GANGADHARAN, AGED 57 YEARS S/O.KALYANI, THOZHUTHUNKAL HOUSE, CHOORAKKOD KARA PATTIMATTAM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT. 4. SUMATHI, AGED 59 YEARS D/O.KALYANI, THOZHUTHUNKAL HOUSE, CHOORAKKOD KARA PATTIMATTAM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT. 5. RUGMINI, AGED 51 YEARS D/O.KALYANI, THOZHUTHUNKAL HOUSE, CHOORAKKOD KARA PATTIMATTAM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT. 6. SANTHA, AGED 52 YEARS - D/O.KALYANI, THOZHUTHUNKAL HOUSE, CHOORAKKOD KARA PATTIMATTAM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT. 7. SULOCHANA, AGED 48 YEARS - D/O.KALYANI, THOZHUTHUNKAL HOUSE, CHOORAKKOD KARA PATTIMATTAM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT. 8. PATHMINI, AGED 43 YEARS - D/O.KALYANI, THOZHUTHUNKAL HOUSE, CHOORAKKOD KARA PATTIMATTAM VILLAGE, KUNNATHUNADU TALUK ERNAKULAM DISTRICT. BY ADV. SRI.S.VINOD BHAT FOR R1 SRI.LEGITH T.KOTTAKKAL SRI.N.ASHOK KUMAR FOR R2-R8 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05-112012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN** , **J.** ## **--------------------------F.A.O. No.243 OF 2012** ## **-------------------------Dated this the 5[th] day of November, 2012** ## **J U D G M E N T** The appellant is the first defendant in O.S.No.52 of 2006 on the file of the Court of the Munsiff of Perumbavoor. The first respondent is the plaintiff and respondents 2 to 8 are defendants 2 to 8 respectively therein. The suit instituted by the first respondent to set aside Ext.A1 sale deed dated 2.1.2006 and for partition and separate possession of his 1/8[th] share in the plaint schedule property was dismissed by the trial court. Aggrieved thereby, he filed A.S.No.69 of 2009 in the Court of the Subordinate Judge of Perumbavoor. By judgment delivered on 23.12.2011, the lower appellate court allowed the appeal, set aside the decree and judgment of the trial court and remanded the suit for fresh trial. Such an order happened to be passed in view of the reception of additional evidence by the lower appellate court on an application by the plaintiff. The brief facts of the case are as follows. 2. The plaintiff and defendants 2 to 8 are the children of late Kalyani. The plaint scheduled property was allotted to her share as per the final decree for partition passed in O.S.No.300 of 1989 on the file of the Court of the Munsiff of Perumbavoor. She died intestate FAO No.243/2012 2 and on her death, it devolved on the plaintiff and defendants 2 to 8. The suit was instituted on the allegation that at a point of time when the plaintiff was residing at Malappuram, defendants 2 to 8 executed Ext.A1 sale deed in favour of the first defendant transferring the plaint scheduled property to him and for that purpose the signature and thumb impression of the plaintiff were affixed by someone who impersonated him in the document of conveyance and in the records in the Sub Registrar's Office. He alleged that such a sale deed was executed with an intention to defraud him. 3. The first defendant filed a written statement resisting the suit. He contended that the plaintiff is the third signatory in Ext.A1, that the plaintiff has affixed his signatures at pages 1 to 7 of Ext.A1 and two of his signatures occur in page 8 and the reverse side of the second page of Ext.A1 contains his thumb impression, that his thumb impression was affixed in the records maintained in the Sub Registrar’s Office and therefore, the allegation that someone else impersonated him and executed Ext.A1 sale deed is not true or tenable. Defendants 2 to 8 filed a joint written statement raising similar contentions. In the trial court, the plaintiff was examined as PW-1 and Exts.A1 and A2 were marked. On the side of the defendants no oral evidence was adduced but the original of the sale deed in favour of the first FAO No.243/2012 3 defendant was produced and marked as Ext.B1. The trial court on an analysis of the pleadings and the evidence on record held that the plaintiff has failed to prove that the signature and thumb impression in the original of Ext.B1 are of someone else and that he has not attempted to have the documents sent for expert opinion to prove that the signature and thumb impression are not his. The suit was accordingly dismissed. 4. Aggrieved by the decree of dismissal, the plaintiff filed A.S.No.69 of 2009 in the Court of the Subordinate Judge of Perumbavoor. Prior to the institution of the suit, the plaintiff has filed a complaint before the Kunnathunadu Police Station. After investigation, the police filed a final report and the case is presently pending as C.C.No.349 of 2008 on the file of the Court of the Judicial First Class Magistrate of Kolenchery. It appears, in that case the specimen thumb impression of the plaintiff (defacto complainant) was taken and it was sent for expert opinion to the Finger Print Bureau, Thiruvananthapuram along with the thumb impression of the plaintiff occurring in the register maintained in the Sub Registrar’s Office, Puthencruz. The Director of Finger Print Bureau thereupon forwarded the report of the Finger Print Expert to the Judicial Magistrate of the First Class along with his letter dated 5.1.2008. After a certified copy FAO No.243/2012 4 of the said report was obtained, the plaintiff filed I.A.No.1702 of 2011 in A.S.No.69 of 2009 praying that the certified copy of the report submitted by the Finger Print Expert may be received into additional evidence under Order 41 Rule 27(aa) of the Code of Civil Procedure. The lower appellate court allowed the said application, set aside the decree and judgment of the trial court and remanded the suit for fresh disposal after affording both sides an opportunity to adduce further evidence if any. The trial court was directed to receive the additional document filed along with I.A.No.1702 of 2011 into evidence. Aggrieved thereby, the first defendant has filed this appeal. 5. I heard Sri.P.Thomas Geeverghese, learned counsel appearing for the appellant, Sri.S.Vinod Bhat, learned counsel appearing for the first respondent and Sri.N.Ashok Kumar, learned counsel appearing for respondents 2 to 8. The learned counsel appearing for the appellant contended that apart from the fact that the certified copy of the report submitted by the Finger Print Expert is not a complete document by itself and the photographical enlargements of the thumb impression were not enclosed, the court below erred in receiving the documents produced along with I.A.No.1702 of 2011 into additional evidence. The learned counsel contended relying on the decision of this Court in **Chirag Enterprises, Merchant and** FAO No.243/2012 5 ## **Commission Agents v. Star Traders, Merchants and Another** (2012 (4) KHC 271) that the procedure adopted by the court below after allowing I.A.No.1702 of 2011 to receive the documents into additional evidence is illegal and therefore, for that reason also, the impugned order is liable to be set aside. The learned counsel appearing for the appellant contended that the lower appellate court ought to have after allowing the application to produce additional evidence, considered the question whether the document sought to be produced is relevant and admissible in evidence and thereafter proceeded under Order 41 rule 28. The learned counsel contended that in the instant case, contrary to the established procedure, the court below allowed the application and received the document into additional evidence without considering whether it is relevant and admissible and remanded the suit for fresh disposal without affording the defendants an opportunity to object to the admissibility of document. The learned counsel contended that in such circumstances, if order of remand passed by the lower appellate court is not set aside, the defendants will be seriously prejudiced. Per contra, the learned counsel appearing for the first respondent contended that the court below has only received the document into evidence and has not decided upon its admissibility and therefore no real prejudice will be caused to the FAO No.243/2012 6 defendants by the order of remand. The learned counsel appearing for respondents 2 to 8 reiterated the contentions raised by the learned counsel appearing for the appellant. 6. I have considered the submissions made at the Bar by the learned counsel on either side. I have also gone through the pleadings and the materials on record. The lower appellate court has by the impugned judgment held that the plaintiff cannot be blamed for belated production of the certified copy of the report submitted by the Finger Print Expert for the reason that he might not have been aware of the receipt of the report of the Finger Print Expert by the Court of the Judicial First Class Magistrate, Kolenchery. The lower appellate court held in the impugned judgment that the said document has to be accepted into evidence. The lower appellate court thereafter held that as the document has been admitted into evidence, the defendants have to be given an opportunity to examine the expert who has given the opinion if they wish to challenge its veracity. For that reason, the decree and judgment of the trial court were set aside and the suit remanded for fresh disposal. The relevant portions of the judgment of the lower appellate court are extracted below:- _“17. It is true that plaintiff failed to take any steps for sending Ext.B1 sale deed for expert opinion. But the document now produced by the plaintiff along with I.A.1702/2011 is a report of the Director of Finger Print Bureau_ FAO No.243/2012 7 _in Crime 159/06 of Kunnathunadu Police Station, ie., a crime referred to in Ext.A2. Since the expert opinion was sent to the Judicial First Class Magistrate Court, Kolenchery, plaintiff who was the defacto complainant in the said crime may not be in a position to know about the receipt of such expert opinion by the Magistrate Court in the said crime. I find no reason to disbelieve the case of the plaintiff that he came to know about such a document only recently and the receipt of such an opinion by the Judicial First Class Magistrate, Kolenchery was not witness his knowledge and therefore he could not produce it before the court below. Therefore I find that the said document which was produced at the appellate court has to be accepted in evidence. Therefore this Court is of the view that the certified copy of the expert opinion of the Director of Finger Print Bureau, Thiruvananthapuram filed before the Judicial First Class Magistrate Court in crime No.159/06 of Kunnathunadu Police Station produced along with I.A.1702/11 has to be accepted in evidence._ _18. When that document is admitted in evidence, necessarily defendants must be given an opportunity to examine the expert who issued that certificate if they challenge the veracity of the expert opinion. Therefore I find that the matter is to be remanded to the court below for fresh disposal after receiving the additional document filed along with I.A.1702/2011 in evidence and after granting an opportunity to defendants to prove the veracity of the opinion in that document if the defendants chose to do so._ _19. In view of the findings rendered above the judgment and decree dated 26.6.08 of Munsiff Court, Perumbavoor are set aside and matter is remanded to the court below for fresh disposal after receiving the additional document filed along with I.A.1702/2011 in evidence and after granting an opportunity to both sides to adduce further evidence if any._ _20. Point No.4:- In the result, appeal allowed by way of remand. The Judgment and decree dated 26.6.2008 are set aside and the suit is remanded to the court below for fresh disposal after receiving the additional document filed along with I.A.1702/2011 in evidence and after granting an opportunity to both sides to adduce further evidence if any. Parties shall appear before the Munsiff Court, Perumbavoor on 20.1.2012._ ## 7. A Division Bench of this Court has in **Chirag Enterprises,** FAO No.243/2012 8 ## **Merchant and Commission Agents v. Star Traders, Merchants** **and Another** (supra) held that though the appellate court has the power to remand the case, merely for the reason that a party wants to produce additional evidence under Order 41 rule 27 of the Code of Civil procedure, the appellate court is not bound to remand the case. It was held that the appellate court has to first decide on the question whether the application seeking production of additional evidence fulfills the requirements of Order 41 Rule 27(aa) and (b) of the Code of Civil procedure and if the application fulfills the above test, to consider the question whether the documents sought to be produced are prima facie relevant and admissible in evidence. It was held that unless this question is considered at that stage, the entire proceedings may sometimes end as a futile exercise after remand. The Division Bench also held if additional evidence is allowed to be produced, the appellate court may either take such evidence or direct the court from whose decree the appeal is preferred or any other court to take such evidence and that without resorting to these three steps, the appellate court cannot come to the conclusion that the case requires to be remanded in view of the application under Order 41 rule 27 of the Code of Civil Procedure. The relevant portion of the judgment of this Court in **Chirag Enterprises, Merchant and Commission Agents v. Star** FAO No.243/2012 9 ## **Traders, Merchants and Another** (supra) is extracted below:- _“29. Normal course of procedure of the Appellate Court is to decide the appeal on the basis of the evidence available on record. Certainly the Appellate Court has the power to remand the case under Section 107 and Order 41 Rules 23 & 23(A) of the CPC. But merely on the reason that the party wants to produce additional evidence or produced evidence under Order 41 rule 27 of the CPC, the Appellate Court is not bound to remand the case as a matter of course. Firstly it is incumbent upon the Appellate Court to decide question whether the application seeking production of additional evidence fulfills the requirements under Order 41 Rule 27(aa) and (b) of the CPC. If the application fulfills the above test, the Appellate Court is bound to consider the next question whether the documents sought to be produced are prima facie relevant and admissible in evidence. Unless this question is considered at this stage, entire proceedings sometimes, may end as a futile exercise; after remand. If the documents produced are irrelevant and inadmissible and there is no possibility to tilt the balance of appreciation available on record, no purpose will be served by a remand. Third stage is the mode of taking additional evidence under Rule 28. lf additional evidence is allowed to be produced, the Appellate Court may either take such evidence or direct the Court from whose decree the Appeal is preferred or any other Court to take such evidence. Therefore, we are of the opinion that without resorting to these three stages, the Appellate Court cannot jump to the conclusion that the case requires remand in view of the application under Order 41 Rule 27 of the CPC. If the documents do not require to be tested and proved in trial, the Appellate Court can take such documents in evidence, without a remand. Thus remand arises when such additional documents are relevant and require to be tested and proved through the process of trial.”_ 8. In the instant case, a reading of the impugned judgment discloses that the court below has allowed the application to receive the report of the Finger Print Expert into evidence, received it into evidence and remanded the suit for the purpose of taking evidence in FAO No.243/2012 10 terms of Order 41 rule 28 of the Code of Civil Procedure without deciding the question whether the document which is produced along with the application by way of additional evidence is relevant and admissible in the case. Though no exception can be taken to the view taken by the lower appellate court that the plaintiff cannot be blamed for belated production of the copy of the report of the Finger Print Expert, in the nature of the contention raised by the appellant that the document produced is incomplete without the photographical enlargements of the thumb impression enclosed along with the original of the report and the contention that the relevancy and admissibility of the document has not been considered by the court below, I am of the opinion that the impugned judgment to the extent it directs reception of the document into evidence and remands the suit for fresh disposal cannot be sustained. The procedure adopted by the court below is not in accordance with the principles laid down by this Court in paragraph 29 of the decision in **Chirag Enterprises, Merchant and Commission Agents v. Star Traders, Merchants and Another** (supra). The lower appellate court should have, as held by the Division Bench, after allowing the application for amendment considered the question whether the document produced along with the application to receive it into additional evidence is relevant and FAO No.243/2012 11 admissible in evidence and thereafter taken evidence in terms of the stipulations contained in rule 28 of Order XLI or directed the trial court or any other court to take such evidence. The lower appellate court could have come to the conclusion that the suit should be remanded for fresh disposal only after considering the relevancy and admissibility of the document produced. In such circumstances, even while holding that the court below was right in allowing I.A.No.1702 of 2011 to receive the document produced along with it into additional evidence, I hold that the court below erred in admitting the said document into evidence and remanding the suit for fresh disposal, without deciding the question whether the document produced is relevant and admissible in evidence. For the reasons stated above, I allow the appeal, set aside the decree and judgment delivered on 23.12.2011 in A.S.No.69 of 2009 and direct the lower appellate court to dispose of the appeal afresh in the light of the principles laid down by the Division Bench of this Court in **Chirag Enterprises, Merchant and Commission Agents v. Star Traders, Merchants and Another** (supra). I make it clear that I have not expressed any opinion as regards the relevancy and admissibility of the document produced along with I.A.No.1702 of 2011 and that the court below will be free to come to its own conclusion in FAO No.243/2012 12 that regard. The parties shall appear before the lower appellate court on 29.11.2012. The lower appellate court shall dispose of the appeal afresh expeditiously and in any event within three months from 29.11.2012. **P.N.RAVINDRAN, (JUDGE)** vps FAO No.243/2012 13