Special Tahsildar (L.A.) vs Mathew

Thottathil B. Radhakrishnan, J.—This Writ Appeal comes up with the noting by the Registry that it is defective because the materials produced as annexures along with an application filed under O. XLI R. 27 C.P.C. are only photocopies of documents and that the originals of the documents are to be produced. The objection is taken on the basis of the judgment in W.A. No. 102 of 2013. We have heard the learned Special Government Pleader for Revenue.

We do not see that there is anything in paragraph 6 of the judgment in W.A. No. 102 of 2013 to the effect that only original documents can be admitted as additional evidence under O. XLI R. 27 C.P.C., including in relation to Writ Appeals. In that case, what we saw was that there was not even an application under O. XLI R. 27 and what was placed as Annexure-A1 along with the memorandum of appeal was a photocopy of a lease. It was, therefore, that the Bench had said that such material could not have been placed along with the appeal except with appropriate application for admission of additional evidence in terms of O. XLI R. 27 of Code of Civil Procedure, because the provisions in O. XLI apply to appeals under S. 5 of the High Court Act. All that was meant by that, is that no additional evidence can be tendered in a Writ Appeal except through an application under O. XLI R. 27 C.P.C.

Rule 159 of the Rules of the High Court of Kerala, 1971, for the short, "High Court Rules", applies to appeals from decisions of single Judges, sub-rule (1) thereof provides that the procedure prescribed for appeals in O. XLI-A of the Code, excluding R. 2 thereof, shall as far as may be, followed in appeals from decisions of single Judges in writ matters. The phrase "as far as may be" in sub-rule (1) of R. 159 of the High Court Rules essentially, does not exclude Rr. 147 and 154 of those Rules from applications to appeals. This means that proof of facts and documents shall be tendered by affidavit and that the copies of documents filed shall be authenticated as true copies by the advocate, and, if there be no advocate, by the party. Such being the position, all that is required, in so far as it relates to admission of additional evidence in Writ Appeals, is that there has to be an application under XLI R. 27 C.P.C. for admission of additional evidence in terms of that provision, however by producing documents supported by an affidavit and duly certified/authenticated in terms of R. 147(2) of the High Court Rules.

There is nothing in the judgment in W.A. No. 102 of 2013 contrary to what is stated above. In the case in hand, an application under O. XLI R. 27 C.P.C. has been filed, supported by the affidavit of an officer of Government. The materials produced therewith are duly authenticated by the Government Pleader. Therefore, the objection taken by the Registry that the appeal is defective on account of non-production of the original documents is unsustainable and is, hence, overruled.

Before parting, we may indicate that we also noticed that the Registry had made reference, though not in writing, to an order dated 4.7.2006 on I.A. No. 3295 of 2005 in M.A.C.A. No. 1687 of 2005. M.A.C.A. is an appeal to which the provisions in Chapter XI of the High Court Rules, including Rr. 147 and 154, do not apply. They are not Writ Appeals. Therefore, what is stated that order issued in an M.A.C.A. has no application to Writ Appeals.