A. ANDISAMY CHETTIARversusA. SUBBURAJ CHETTIAR

                       (2015] 14 S.C.R. 190


A     •              A. ANDISAMY CHETTIAR
                                 v.
                     A. SUBBURAJ CHETTIAR
                  (Civil Appeal No. 14055 of 2015)
B
                       DECEMBER 08, 2015
          [DIPAK MISRA AND PRAFULLA C. PANT, JJ.]
         Code of Civil Procedure, 1908 - Or. XL/, r 27, s. 115 -
c Revisional power - Exercise of - Production of additional
  evidence in appellate court- On facts, suit for injunction filed
  by appellant- Dismissal by trial court-Apipeal there against
  before the first appellate court- During pendency, application
  by appellant tor additional evidence seeking scientific
o examination of the document - Application allowed by the
  first appellate court - Defendant challenging the same by
  filing revision before 1he High Court and the same was
  allowed- On appeal, held: It is clear from sub-rule (1) of r. 27
  that the parties are not entitled to produce additional evidence
E whether oral or documentary in the appellate court, but for
  the three situations mentioned therein - Parties are not
  allowed to fill the lacunae at the appellate stage - On facts,
  no application was moved before the trial court seeking
  scientific examination of the document, nor can it be said
F that the appellant with due diligence could not have moved
  such an application to get proved the documents relied upqn
  by him - When appeal was pending before the lower appellate
  court, the High Court, in revision, should not have interfered
  in the matter of requirement of additional evidence - Thus,
G order passed by the High,Court set aside - Howeve'r, the first
  appellate court directed to decide the application tor
  additional evidence afresh.
          K.R. Mohan Reddy v. Net Work Inc. 2007 (10) SCR
H         872: (2007) 14 SCC 257; North Eastern Railway
                                 190
  A.ANDISAMY.CHETTIAR v. A. SUBBURAJ CHETTIAR                  191


       Admn. v. Bhagwan Oas2008 (6) SCR 416: (2008)            A
       8 SCC 511; N. Kama/am (dead) and another v.
       Ayyasamy and another 2001 (1) Suppl. SCR
       272 : (2001) 7 SCC 503; UniOn of India v. Ibrahim
       Uddin and Another 2012 (8) SCR 35 : (2012) 8
       SCC 148; Mahavir Singh and others v. Naresh             B
       Chandra and Another2000 (4) Suppl. SCR 454 :
       (2001) 1 SCC 309; Gurdev Singh and others v.
       Mehnga Ram and Another 1997· (2) Suppl. SCR
       693: (1997) 6 sec 507- referred to.
                             ..                                c
                   Case Law Reference

2007 (10)SCR 872                  referred to       Para 13

2008 (6) SCR 416                  referred to       Para 14
   :                                                           D
2001 (1) Suppl. SCR 272           referred to       Para 15

2012 (8) SCR 35                   referred to       Para 16

2000 (4) Suppl. SCR 454           referred to       Para 18
                                                           .   E
1997 (2) Suppl. SCR 693           referred to       Para 19

    CIVIL APPELLATE JURISDICTION: Civil Appeal No.
14055 of 2015.
      From the Judgment ar:id Orderdated.07.11.2014 of the F
Madurai High Court of Judicature at Madras in Civil Revision
Petition (PD) (MD) No. 1787 of 2008.
    S. Nanda Kumar, Parivesh Singh, M. Soundarasaran
Kumar, P. Srinivasan, Ranjeet Singh, Naresh Kumar for the G.
Appellant.
       The Judgment of the Court was delivered by
     PRAFULLA C. PANT, J. 1. This appeal is directed
against order dated 07 .11.2014, passed by the High Court of H
192         SUPREME COURT REPORTS                     (2015) 14 S.C.R.


A Judicature at Madras, Bench Madurai, in Civil Revision Petition
  (PD) (MD) No. 1787 of 2008 whereby the revision was allowed,
  and order dated 12.03.2008 passed by Subordinate Judge,
  Vlrudhunagar, on I.A. No. 3 of 2008 (in A.S. No. 55 of 2007), is
  set aside.
B
        2. We have heard learned counsel for the parties and
  perused the papers on record.
            3. Succinctly stated, facts of this case are that the
C     appellant/plaintiff instituted Original Suit No. 92 of 2003 before
      District Munsif, Virudhunagar: for permanent injunction
      restraining the defendant from interfering in his peaceful
      possession and enjoyment of the property in suit. It is pleaded
      in the plaint that originally the property in dispute was owned
D     by one Gopalsamy Pillai. On 21.08.1963 Gopalsamy Pillai
      transferred the property by executing a sale deed in favour of
      one Lakshmiammal. Lakshmiammal further transferred the
      property to Gurusamy Naicker through deed dated 26.12.1968.
      Plaintiff's father Ayyappan Chettiar purchased the property from
 E    Gurusamy Naicker, and constructed his house. It is further
      pleaded that Ayyappan Chettiar executed Will dated
      13.12.1990 in favour of the plaintiff, and after death of his father
      in 1997, the plaintiff is in exclusive possession of the property.
      Alleging that the defendant has no right over the disputed
 F    property, relief of permanent injunction against him is sought
      in the suit. Plaintiff Andisamy Chettiar and defendant Subburaj
      Chettiar are sons of Ayyappan Chettiar.
          4. The defendant filed his written statement and contested
 G the suit. It is not disputed in the written statement thatAyyappan
   Chettiar, who purchased the property from Gurusamy Naicker,
   died on 12.10.1997. However, it is disputed that Ayyappan
   Chettrar executed Will dated 13.12.1990, relied by the plaintiff.
   It is alleged by the defendant that the plaintiff has filed suit for
 H permanent injunction only to evade partition of the property. It
  A. ANDISAMY CHETTIAR v. A. SUBBURAJ CHETTIAR                          193
              [PRAFULLAC. PANT, J.)

is also pleaded by the defendant that apart from two sons, A
Ayyappan Chettiar had three daughters, namely, Lakshmi,
Avudaithai and Ai1dal. Lakshmi and Anda! died intestate
leaving legal heirs, as such, suit is bad for non-joinder of
remaining daughter of Ayyappan Chettiar and legal heirs of
pre-deceased daughters.                                      B
     5. On the basis of pleadings of the parties following issues
were framed by the trial court: -
       (i) Whether Ayyappan Chettiar executed a Will in favour
       of the plaintiff in respect of the property in suit?    C·
        (ii) Whether the plaintiff is entitled to the relief of
      . permanent injunction?
       (iii) To what other relief, if any, the plaintiff is entitled?   o
       6. The plaintiff got examined himself as PW-1 Andisamy
Chettiar and he also got examined PW-2 Selvarajan, stated
to be attesting witness of the Will. Nine documents (including
Will Ex.A-4) were filed by the plaintiff. On behalf of the . E
defendant, he got himself examined a:s DW-1 Subburaj
Chettiar, and filed three documents. The trial court, after hearing
the parties, decided issue No.1 against the plaintiff holding
that the plaintiff failed to prove thatAyyappan Chettiar executed
the Will relied on by him. On the basis of finding on issue No. F
1, issue Nos. 2 and 3 are also decided in favour of the
defendant, and the suit was dismissed vide judgment and order
dated 05.02.2007.
      7. Aggrieved by the decree passed by the trial court, the
plaintiff filed appeal (A.S. No. 55 of 2007) before the first G
appellate court, i.e. Subordinate Judge, Virudhunagar'.
       8. During the pendency of A.S. No. 55 of 2007 before
the first appellate court, an application (I.A. No. 3 of 2008) was
moved on behalf of the plaintiff with following prayer: -          H
 194         SUPREME COURT REPORTS                   [2015] 14S.C.R.


  A          ''Therefore it is just and necessary that this Hon'ble Court
             be graciously pleased to direct a scientific investigation
             to find out whether the signature of Ayyappan Chettiar,
             my father in Ex. A-4 is genuine by comparing the
             signature of Ayyappan Chettiar, in Ex. A-4 with his
  B          admitted signatures in Ex. B-1 to B-3, by a competent
             hand-writing expert, and further direct him to file a report
             to the scientific investigation done by him and justice
             thus rendered."

  C         · 9. The first appellate court, vide order dated 12.03.2008,
       allowed the I.A. No. 3 of 2008, and directed the appellant to
       deposit a sum of Rs.5000/- as fee.

           10. The defendant challenged the order passed by the
  D first appellate court, allowing the application for additional
    evidence, before the High Court in Civil Revision Petition (PD)
    (MD) No. 1787 of 2008, which is allowed by said court by the
    impugned order assailed before us.

             11. Under the scheme of Code of Civil Procedure, 1908
' E (for short "the Code'~) whether oral or documentary, it is the
       trial court before whom parties are required to adduce their
       evidence. But in three exceptional circumstances additional
       evidence can be adduced before the appellate court, as
  F    provided under S. 107{1 )(d) read with Rule 27 of Order XU of
       the Code. Rule 27 of Order XU reads as under: -

              "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
  G           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
  H
  A. ANDISAMY CHETTIAR v. A. SUBBURAJ CHETTIAR                 195
                  [PRAFULLA C. PANT, J.]

        (aa)the party seeking to produce additional evidence, A
           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 a:gai0st was passed, or        B
      . (b) 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,                                  c
      The Appellate Court may allow such evidence or
      document to be produced, or witness to be examined.
         (2) Wherever additional evidence is allowed to be
      produced by an Appellate Court, the Court shall record D
      the reason for its admission."
                                        (emphasis supplied)
      12. From the operling words of sub-rule (1) of Rule 27, E
quoted above, it is clear that the parties are not entitled to
produce additional evidence whether oral or documentary in
the appellate court, but for the three situations mentioned above.
The parties are not allowed to fill the lacunae at the appellate
stage, It is against the spirit of the Code to allow a party to
adduce additional evidence without fulfillment of either of the F
three conditions mentioned in Rule 27. In the case at hand, no
application was moved before the trial court ::;eeking scientific
examination of the document (Ex.A-4), nor can it be said that
the plaintiff with due diligence could not have moved such an G
application to get proved the documents relied upon by him.
Now it is to be seen whether the third condition, i.e. one
contained in clause (b) of sub-rule (1) of Rule 27is fulfilled or
not.
                                                                H-
196         SUPREME COURT REPORTS                    (2015] 14 S.C.R.


A          13. In K. R. Mohan Reddy v. Net Work Inc. 1, this Court
      has held as under: -
             "19. The appellate court should not pass an order so
             as to patch up the weakness of the evidence of the
B            unsuccessful party before the trial court, but it will be
             different if the court itself requires the evidence to do
             justice between the parties. The ability to pronounce ·
             judgment is to be understood as the ability to pronounce
             judgment satisfactorily to the mind of the court. But mere
c            difficulty is not sufficient to issue such direction ...... "
           14. In North Eastern Railway Admn. v. Bhagwan
      Das2, this Court observed thus: -
             "13. Though the general rule is that ordinarily the
D            appellate court should not travel outside the record of
             the lower court and additional evidence, whether oral
             or documentary is not admitted but Section 107 CPC,
             which carves out an exception to the general rule,
             enables an appellate court to take additional evidence
 E           or to require such evidence to be taken subject to such
             conditions and limitations as may be prescribed. These
             conditions are prescribed under Order 41 Rule 27 CPC.
             Nevertheless, the additional evidence can be admitted
             only when the circumstances as stipulated in the said
 F           Rule are found to exist.. ...... "
           15. In N. Kama/am (dead) and anotherv. Ayyasamy
      and another3, this Court, interpreting Rule 27 of Order XU of
      the Code, has observed in para 19 as under: -
G            "....... the provisions of Order 41 Rule 27 have no! been
             engrafled in the Code so as to patch up the weak points
             in the case and to fill up the omission in the court of
      1
        (2001) 14 sec 251
      2 (2oos) s sec 511
 H    ' (2001) 1 sec 503
  A. ANDISAMY CHETIIAR v. A. SUBBURAJ CHETIIAR                       -197
              [PRAFULLAC. PANT, J.]

       appeal - it does not authorize any lacunae or gaps in A
       the evidence to be filled up. The authority and jurisdiction   ''
       as conferred on to the appellate court to let in fresh
       evidence is restricted to the purpose of pronouncement
       of judgment in a particular way."
                                                                    B
      16. In Union of India v. Ibrahim Uddin and another4,
this Court has held as under: -
           49. An application under Order 41 Rule 27 CPC is to
           be considered at the time of hearing of appeal on
           merits so as to find out whether the documents and/or .C ·
           the evidence sought to be adduced have any relevance/
           bearing on the issues involved. The admissibility of
           additional evidence does not depend upon the relevancy
           to the issue on hand, or on the fact, whether the applicant
                                                                       0
           had an opportunity for adducing such evidence .at an
           earlier stage or not, but it depends upon whether or not
           the appellate court requires the evidence sought to be
           adduced to enable it to pronounce judgment or for any
           other substantial cause. The true test, therefore is, E
           whether the appellate court is able to pronounce
           judgment on the materials before it without taking into
           consideration the additional evidence sought to be
           adduced .............. "
       17. Learned counsel for the appellant argued before us         F
that the High Court, in revision, at an interim stage of appeal
pending before the lower appellate court, should not have
interfered in the matter of requirement of additional evidence.
       18. We have considered the argument advanced on G
 behalf of the appellant and also perused the law laid down by
 this Court as to the exercise of revisional power under Section
-115 of the Code in such matters. In Mahavir Singh and others
• c2012J   a sec 148                                                  H
198         SUPREME COURT REPORTS                [2015] 14 S.C.R.


A v. Naresh Chandra and anothet6, explaining the scope of
  revision in the matters of acceptance of additional evidence
  by the lower appellate court interpreting expression "or for any
  other substantial cause" in Rule .27 of Order XLI, this Court
  has held as under: -
8
         'The words "or for any other substantial cause" must be
         read with the word "requires'', which is set out at the
         commencement of the provision, so that it is only where,
         for any other substantial cause, the appellate court
c        requires additional evidence, that this rule would apply
         as noticed by the Privy Council in Kessowji lssurv. Gl.P.
          Rly. [ILR (1907-08) 31 Born 381]. It is under these
         circumstances such a power could be exercised.
         Therefore, when the first appellate court did not find the
D         necessity to allow the application, we fail to understand
          as to how the High Court could, in exercise of its power
         under Section 115 CPC, have interfered with such an
          order, particularly when the whole appeal is not before
         the Court. It is only in the circumstances when the
          appellate court requires such evidence to pronounce
         the judgment the necessity to adduce additional
          evidence would arise and not in any other
         circumstances. When the first appellate court passed
          the order on the application filed under Order 41 Rule
F         27 CPC, the w~ole appeal was before it and if the first
          appellate court is satisfied that additional evidence was
          not required, we fail to understand as to how the High
          Court could interfere with such an order under Section
          115 CPC."
G
              19. In Gurdev Singh and others v. Mehnga Ram and
      anothet6, this Court, on similar issue, has expressed the view
      as under:-
      • (2001 l 1 sec 309
 H • (1997) e sec· 507
  A. ANDISAMY CHETIIAR v. A. SUBBURAJ CHETIIAR                       199
              [PRAFULLA C. PANT, J.]

      "We have heard learned counsel for the parties. The            A
      grievance of the appellants before us is that in an appeal
      filed by them before the learned Additional District
      Judge, Ferozepur, in an application under Order XLI,
      Rule 27(b), Code of Civil Procedure (CPC) the learned
      Additional District Judge at the final hearing of the          B
      appeal wrongly felt that additional evidence was
      required to be produced as requested by the appellants
      by way of examination of a handwriting expert. The High
      Court in the impugned order exercising jurisdiction
      under Section 115 CPC took the view that the order of          C
      the appellate court could not be sustained. In our view
      the approach of the High Court in revision at that interim
      stage when the appeal was pending for final hearing
      before the learned Additional District Judge was not
      justified and the High Court should not have interfered        D
      with the order which was within the jurisdiction of the
       appellate court. The reason is obvious. The appellate
      court hearing the matter finally could exercise jurisdiction
      one way or the other under Order XLI, Rule 27 specially        E
       clause (b). If the order was wrong on merits, it would
       always be open for the respondent to challenge the
       same in accordance with law if an occasion arises to
       carry the matter in second appeal after an appellate
      decree is passed. But at this interim stage, the High          F
       Court should not have felt itself convinced that the order
      was without jurisdiction. Only on this short question,
      wit~out expressing any opinion on the merits of the
       controversy involved and on the legality of the
       contentions advanced by both the learned counsel for          G
      the parties regarding additional evidence, we allow this
      appeal, set aside the order of the High Court."
    .20. In view of the law laid down by this Court, as discussed
above, regarding exercise of revisional powers in the matter H
200          SUPREME COURT REPORTS              [2015] 14 S.C.R.

A  of allowing the application for additional evidence, when
   appeal is pending before the lower appellate court, the
 · impugned order passed by the High Court cannot be upheld
   and the same is set aside. However, to do complete justice
   between the parties, we think it just and proper to direct the
B first appellate court to decide the application for additional
   evidence afresh in the light of observations made by this Court
   regarding principles on which such an application can be
   allowed or rejected. We order accordingly. We further clarify
   that we have not expressed any opinion as to the merits of the
C case. Accordingly, the appeal is disposed of. No order as to
   costs.

      Nidhi Jain                                 Appeal disposed of.