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Judgment
S. Palanivelu, J.—In the affidavit filed by the petitioners, the following are the common points:
The petitioner is tenant of the petition premises. The respondents filed R.C.O.P. For eviction on the ground of demolition and reconstruction u/s
14(1)(b) of Tamil Nadu Buildings (Lease and Rent Control) Act. The demised premises is situated at Door No. 80, New No. 94, Thiagaraya
Road, T.Nagar, Chennai, which is commercial area in the city, in which the petitioner is running business for quite a long time. The rent controller
on 11.02.2003 passed order of eviction upon which he has preferred appeal. Now, he has reliably understood that the demised building is a
continuous building of the neighbouring building and there are different owners and the building is having common ""thaisuvar"" which cannot be
demolished by the respondent without the other owners, filed a petition for demolition and re-construction. The adjacent owners have not instituted
any proceedings for eviction of their tenancy and demolishing a part of the building will not serve any purpose. Demolition of a part of the building
will affect the entire building and the demolition cannot be done in the part. Hence, a Commissioner has to be appointed to note down the physical
features and to report the court whether the building is having a common ""thaisuvar"" and whether the petition premises can be demolished or not.
In the counter filed by the respondents it is stated that the application for appointment of Advocate Commissioner has been filed without any
purpose or justification, just to drag on the case as much as possible. The petition is vexatious. He has not taken any steps before the rent
controller. One engineer was examined on behalf of the petitioner and four engineers were brought to witness box by this respondent. After the
appeals were heard and posted for orders on 26.11.2008 the petitioners filed petition to re-open the cases alleging inconvenience on the part of
their counsel. Hence the application is motivated. As stated in the affidavit the petitioners'' building is not continuous building, which is surrounded
by streets on three sides and site is nearly to an extent of 3000 Sq.ft. In Modern Engineering Technology when a house itself can be moved from
one place to another, it is too late in the day to say that the building cannot be demolished without demolishing the alleged ""thaisuvar"". The
petitioner has got nothing to do with method of demolition. The building will be demolished without, in any manner affecting the neighbour. It is
significant to note that none of the 4 engineers has spoken about the non-feasibility of demolition. The appointment of Advocate Commissioner will
not serve any purpose. The demised premises is not continuous building but distinctly different building. Hence the petition may be dismissed.
Learned appellate authority has passed a common order, directing both the applications be heard along with main rentcontrol appeals.
Aggrieved against the order, the petitioners are before this Court.
Mrs. Vedavalli kumar, learned Counsel for the petitioner, would contend that inasmuch as the Commissioner''s report which would be in the
form of additional evidence would render entry to the appellate authority to decide the appeal. An Advocate Commissioner may be appointed and
the petition may be dealt with separately independent of the rent control appeal.
Repelling the above said arguments, the learned Counsel for the respondent Mr. G. Kathirvelu, would argue that it is settled preposition that any
application under Order 41 Rule 27 C.P.C with respect to additional evidence shall be heard along with appeal and no independent hearing could
be given to such application.
Learned Counsel for the petitioners in support of her contention placed reliance upon a decision of this Court in Special Tahsildar and Land
Acquisition Officer Vs. Daisy Morayin, Antony T. Morayin, Titan T. Morayin, Maickel T. Morayin and Amburose J. Morayin, wherein this Court
rejected the contention, that application for appointment of Commissioner filed during pendency of trial should be treated as one filed for receipt of
additional evidence and be heard along with appeal. This Court has confirmed the order of the First Appellate Court appointing Commissioner
before hearing appeal. While reaching such conclusion, this Court followed a decision of the Honourable Supreme Court in AIR 1991 SC
[Premier Automobiles Ltd., Bombay v. Kabirunnisa] wherein a direction was issued to the lower Court to hear and dispose of the application filed
under Order 41, Rule 27 at the first instance and thereafter only to take up the final hearing of the appeal.
The learned Counsel for the respondent would garner support from the Division Bench decision of this Court reported in 1994 (2) L.W. 376
[M. Ayyaswami and Anr. v. S.P. Ganesan and Anr.] wherein it has been held that an application filed in the appeal for permission to adduce
additional evidence has to be considered along with main appeal and not separately. To reach this conclusion, the Division Bench followed a
decision of the Privy Council and the relevant portion of the decision is as follows:
It is the settled position of law that an application filed in the Appeal for permission to produce additional evidence has to be considered along
with the main appeal and not separately. The Privy Council has considered this question in Kessowji v. G.I.P. Railway 34 I.A. 115 and has again
reiterated the same view in AIR 1931 143 (Privy Council) . The Supreme Court in Arjan Singh v. Kartar Singh, (1951) 2 SCR 258 after referring
to the aforesaid decisions, had held that without examination of the evidence on record, and without a decsion is reached that the evidence as it
stood disclosed a lacuna which the Court required to be filled up for pronouncing its judgment, the appeallate Court could not be justified in
admitting the additional evidence under Order 41, Rule 27 C.P.Code. The relevant portion of the judgment of the Supreme Court is as follows:
The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in
Order 41, Rule 27 C.P.C., if the additional evidence was allowed to be adduced contrary to the principles governing the reception of such
evidence, it would be a case of improper exercise of discretion and the additional evidence so brought on the record will have to be ignored and
the case decided as if it was non-existent, Under Order 41, Rule 27, it is the appellate Court that must require the evidence to enable it to
pronounce judgment. As laid down by the Privy Council in the well-known case of Kessowji v. G.I.P. Railway 34 I.A. 115 : 31 Dom. 381 (P.C.).
the legitimate occasion for the application of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect
becomes apparent, not where a discovery is made, outside the Court of fresh evidence and the application is made to import it.
and they reiterated this view in stronger terms even in the later case of AIR 1931 143 (Privy Council) . The true test, therefore, is 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.
In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Court felt the need
for the omission being supplied so that it could pronounce a judgment; to put it the other way round, it does not appear and it was not stated, that
the District Judge felt himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the
first time. On the other hand, the District Judge made up his mind to admit the certified copies of the kami beshi and muntakhib asami-war registers
even before he heard the appeal. The order allowing the appellant to call the additional evidence is dated 17.3.1942. The appeal was heard on
24.4.1942. There was thus no examination of the evidence on record and a decision reached that the evidence as it stood disclosed a lacuna which
the Court required to be filled up for pronouncing its judgment. In the circumstances the learned Judges of the High Court were right in holding that
the District Judge was not justified in admitting this evidence under Order 41, Rule 27.
Therefore, it is not possible to sustain the order allowing the petition filed for adducing additional evidence which has been considered separately,
without reference to the evidence on record and without considering the application along with the main appeal.
This Court has followed the above said decision and rendered judgment, on the same lines, reported in S. Santhana Selvaraj Vs. Jaffar Khan
and 2 others, . I have also taken an identical view in the case reported in 2009 (1) CTC 138 [Thiruvengadam v. Saroja and 2 Ors.] following the
Division Bench decision in Ayyasamy''s case supra and Santhana Selvaraj case supra and yet another case reported in 2001 (4) CTC 624
[Kumarasamy Mudaliar v. Kuttiappa Mudaliar].
There has been two different views taken by this Court in the same matter where the question whether the application under Order 41 Rule 27
has to be heard along with appeal at the time of final hearing of the same or to be heard and disposed of independently and then to proceed with
the appeal, without reference to the final disposal of the appeal, has arisen. Hence, I deem it fit, the matter be placed before a Larger Bench for
taking an uniform view to be followed by the Courts in the State in future on this subject.
The reference for the decision of the Larger Bench is follows:
Whether an application for receipt of additional evidence filed under Order 41 Rule 27 of C.P.C has to be heard at the first instance independent
of final hearing of the appeal or be decided along with main appeal at the time of final hearing of the same?
I direct the registry to place the matter before My Lord the Honourable Chief Justice for being referred to Larger Bench.