TaxTMI 
TaxTMI 
2015 (12) TMI 1853
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....enjoyment of the property in suit. It is pleaded in the plaint that originally the property in dispute was owned 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. Plaintiffs father Ayyappan Chettiar purchased the property from 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 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 the suit. It is not disputed in the written statement that Ayyappan Chettiar, who purchased the property from Gurusamy Naicker, died on 12.10.1997. However, it is disputed that Ayyappan Chettiar executed Will dated 13.12.1990, relied by the Plaintiff. It ....
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.... 2008, and directed the Appellant to deposit a sum of Rs. 5000/- as fee. 10. The Defendant challenged the order passed by the 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 (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 provided Under Section 107(1)(d) read with Rule 27 of Order XLI of the Code. Rule 27 of Order XLI 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 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 (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise o....
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.... exception to the general rule, enables an appellate court to take additional evidence 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 Code of Civil Procedure. Nevertheless, the additional evidence can be admitted only when the circumstances as stipulated in the said Rule are found to exist.... 15. In N. Kamalam (dead) and Anr. v. Ayyasamy and Anr. : (2001) 7 SCC 503, this Court, interpreting Rule 27 of Order XLI of the Code, has observed in para 19 as under: ...the provisions of Order 41 Rule 27 have not been engrafted in the Code so as to patch up the weak points in the case and to fill up the omission in the court of appeal-it does not authorize any lacunae or gaps in 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. 16. In Union of India v. Ibrahim Uddin and Anr. : (2012) 8 SCC 148, this Court has held as under: 49. An application under Order 41 Rule 27 Code of Civil Procedure is to be considered at the t....
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.... would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order 41 Rule 27 Code of Civil Procedure, the whole 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 Code of Civil Procedure. 19. In Gurdev Singh and Ors. v. Mehnga Ram and Anr. : (1997) 6 SCC 507, this Court, on similar issue, has expressed the view as under: We have heard learned Counsel for the parties. The 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 (Code of Civil Procedure) the learned Additional District Judge at the final hearing of the 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 Code of Civil Procedure took the view that the order of the appellate ....