IGNASIAMMAL Vs. FATHIMA BEEVI

JUDGEMENT

(1.) THE first defendant is the appellant.

(2.) THE plaintiff has filed the suit for declaration and permanent injunction is respect of the suit property. THE defendants 1 and 2 resisted the same before the trial court. THE trial Court has framed as many as five issues on the pleadings and one additional issue and has held that the plaintiff has no cause of action, the first defendant has got a right in the common pathway, the first defendant has a right to let out his eaves water on the northern extreme of the five feet space running north-south and the case of the first defendant that the plaintiff is not entitled to any of these three reliefs has been proved and dismissed the suit. As against the said judgment of the trial court, the plaintiff has preferred an appeal to the Sub Court, Srivilliputhur.

(3.) ORDER 41, Rule 27 of the Code of Civil Procedure enables the production of additional evidence in the appellate court only in certain contingencies viz., the trial court has refused to admit the evidence which ought to have been admitted or the parties seeking to produce the additional evidence establishes that notwithstanding the exercise of the due diligence, such evidence which was within his knowledge could not be produced by him at the time of the trial or the appellate court requires the document to be produced to enable it, to pronounce judgment or for any other substantial cause. None of the above contingencies has arisen in the present case. The learned Sub Judge, himself has observed that how for this document will help the plaintiff is to be found out. In the affidavit filed by her, for reception of the document, the appellant has not given the reasons for not producing the document. She has stated that the non- production of the document earlier is by mistake and by due to oversight and it came to the light only when she sworn to the affidavit, the appellant has produced. The appellant has obtained the sale deed on 22.1.1986 subsequent to the filing of the suit in 1984. The judgment was pronounced in the suit only on 30.6.1987. The appellant as the plaintiff, never filed the said document in the trial Court during the trial. No reason has been given by the appellant for not producing the said document in the trial court except stating that it is by a mistake and oversight.