Dismissed¶37

Veerakumar v. C.Narayanasamy

Madras HC18 Jun 2025CRP/2293/2025

Case brief

AI extract

What is this about?

Order 41 Rule 27 CPC additional evidence application; Order 41 Rule 28 CPC procedure on appeal; hearing application along with appeal; procedural irregularity cured by opportunity; no prejudice from failure to follow procedure; appellate Court to take evidence and permit cross-examination; Article 227 Constitution of India revision; Madras High Court; Additional Subordinate Judge Tiruppur; A.S.No.27 of 2022; O.S.No.57 of 2007 declaration and permanent injunction pathway; O.S.No.120 of 2007 preliminary and final decree; settlement deeds; CRP dismissed no costs.

What did the court decide?

Normally, an application filed under Order 41 Rule 27 CPC is heard along with the appeal. ¶32

Veerakumar Vs C.Narayanasamy — Writ and Judicial Review | Madras HC (2025)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the appellate Court erred in allowing the respondents' application under Order 41 Rule 27 CPC to receive additional documents without first hearing the appeal on merits.

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Court's answer

Normally, an application filed under Order 41 Rule 27 CPC is heard along with the appeal.

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Ratio / Principle

If the Court is of the view that additional evidence is required, the procedure contemplated under Order 41 Rule 28 CPC has to be followed by the appellate Court.

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Key takeaways

In this case the appellate Court, instead of hearing the appeal, heard and allowed the Order 41 Rule 27 application; proper procedure was therefore not followed.ratio¶32
Mere failure to follow the procedure will not cause any prejudice to the revision petitioner, provided proper opportunity is given by the appellate Court.ratio¶32
Having allowed the application to receive additional evidence, the appellate Court shall now follow the procedure contemplated under Order 41 Rule 28 CPC.

Detailed headnote1 paragraphs

Madras High Court (N. Sathish Kumar, J.), 18.06.2025, CRP NPD No.2293 of 2025 & CMP.No.13293 of 2025: The revision petitioner challenged the order dated 05.04.2024 in I.A.No.3 of 2022 in A.S.No.27 of 2022 (Additional Subordinate Judge, Tiruppur) whereby the appellate Court allowed the respondents' application under Order 41 Rule 27 CPC to receive additional documents (preliminary and final decrees in O.S.No.120 of 2007 and three settlement deeds) without first hearing the appeal arising from O.S.No.57 of 2007 (suit for declaration and permanent injunction regarding a pathway, already dismissed). Held: although such an application is normally heard along with the appeal and, where additional evidence is required, the Order 41 Rule 28 procedure must be followed, the appellate Court here heard and allowed the application instead of the appeal; however, mere failure to follow that procedure causes no prejudice to the revision petitioner if proper opportunity is given. Directing the appellate Court to now follow Order 41 Rule 28 CPC, take evidence, afford the revision petitioner an opportunity to cross-examine the witness, and dispose of the appeal on merits, the Civil Revision Petition was dismissed with no costs and the connected miscellaneous petition was closed.

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CRP NPD.No.2293 of 2025

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THE HIGH COURT OF JUDICATURE AT MADRAS

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Date : 18.06.2025

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CORAM:

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THE HONOURABLE MR.JUSTICE N. SATHISH KUMAR

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CRP [NPD] No.2293 of 2025 & CMP.No.13293 of 2025

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Veerakumar . . . Petitioner

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Versus

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C.Narayanasamy 2. R.Jothimani

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R.Prasanth

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R.Soumiya

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Saraswathi

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S.Vasanthamani

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S.Janani

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S.Mahendiran C.Samiyappan [died] C.Rathinasamy [died] . . . Respondents

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PRAYER : Petition filed under Article 227 of Constitution of India to set aside the fair and final Order dated 05.04.2024 made in IANo.3 of 2022 in A.S.No.27 of 2022 on the file of the learned Additional Subordinate Judge, Tiruppur by allowing this Civil Revision Petition.

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https://www.mhc.tn.gov.in/judis

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For petitioner : Mr.N.S.Suganthan

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CRP NPD.No.2293 of 2025

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O R D E R

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Challenge has been made to the Order passed by the appellate Court allowing the application filed by the respondents for receiving additional documents.

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The suit in O.S.No.57 of 2007 has been filed by the revision petitioner for declaration and permanent injunction in respect of the pathway. The suit has been dismissed. However, during the appeal, the respondents took out an application to receive additional documents namely preliminary decree passed in O.S.No.120 of 2007 and the final decree passed thereon and that apart, three settlement deeds. The appellate Court has in fact allowed the application. Challenging the same the present revision has been filed.

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The main contention of the learned counsel appearing for the

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petitioner is that the application filed under Order 41 Rule 27 Code of Civil

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https://www.mhc.tn.gov.in/judis

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CRP NPD.No.2293 of 2025

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Procedure ought to have been heard along with the appeal. Therefore, without hearing the appeal on merits, the appellate Court ought not have allowed the application.

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I have heard the learned counsel appearing for the petitioner and

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perused the materials available on record.

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Though normally the application filed under Order 41 Rule 27 of Code of Civil Procedure will be heard along with the appeal and if the Court is of the view that additional evidence is required, then the procedure contemplated under Order 41 Rule 28 of Code of Civil Procedure has to be followed by the appellate Court. However, the appellate Court instead of hearing the appeal, has heard the application filed under Order 41 Rule 27 and allowed the application. Though proper procedure has not been followed, the appellate Court has held that the additional documents sought to be filed are necessary to enable the Court to render justice. In such view of the matter mere failure to follow the procedure, this Court is of the view that, will not

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https://www.mhc.tn.gov.in/judis

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CRP NPD.No.2293 of 2025

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cause any prejudice to the revision petitioner, if proper opportunity is given to the him by the appellate Court. Having allowed the application to receive additional evidence, the appellate Court shall now follow the procedure contemplated under Order 41 Rule 28 of Code of Civil Procedure. The appellate Court may take evidence, since it has allowed the application filed to receive additional evidence and give opportunity to the revision petitioner to cross examine the witness and thereafter, proceed further and dispose the appeal on merits.

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