CRP/4235/2024 of M.SEEMAN Vs VAITHIYALINGAM on 10 September 2026

ORDER

The respondent in A.S. No.42 of 2023, aggrieved by the order in I.A. No.3 of 2024, has come up by way of this revision petition.

2. I have heard Mr.M.Ravi, learned counsel for the revision petitioner and Mrs.B.N.Sivagama Sundari, learned counsel for the respondent.

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3. The brief facts that are necessary for deciding the revision are as hereunder:- The revision petitioner as plaintiff filed a suit in O.S. No.78 of 2020 before the learned Principal Sub Judge, Ariyalur for recovery of money due. The said suit was decreed in favour of the revision petitioner. The respondent preferred the First Appeal in A.S. No.42 of 2023, before the learned Principal District Judge, Ariyalur and pending the said appeal, I.A.No.3 of 2024 was filed invoking Order 41 Rule 27 CPC. The respondent wanted to mark additional documents viz., cellphone containing conversation between the defendant and the plaintiff’s wife, Sumathi, with regard to the amount due and payable by the respondent/defendant. The said application was opposed by the revision petitioner and the learned Principal District Judge, Ariyalur, independently took up I.A. No.3 of 2024 and allowed the same, by receiving the documents subject to validity, genunity, reliability and admissibility. It is this order that is now under challenge.

4. Mr.M.Ravi, learned counsel for the petitioner would firstly contend that having already attempted to mark the pendrive and Compact Disc before the Trial Court and the said documents not finding favour, the respondent cannot attempt to fill up the lacunae, after suffering a decree before the Trial Court. It is also his submission that the First Appellate Court ought not to have taken up the Interlocutory Application under Order 41, Rule 27 CPC,

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independently, which is against the ratio laid down by this Court holding that an application under Order 41, Rule 27 CPC has to be necessarily taken up along with appeal alone. He would also rely on the order of this Court in G.Venkatachalam Vs. A.P.Kuppuraj, in C.R.P. (NPD) No.360 of 2013, dated 21.04.2017 and Pandiyaraj Vs. Sankar and another, in C.R.P (MD) No.1822 of 2019, dated 19.03.2024.

5. Per contra, Mrs.B.N.Sivagama Sundari, learned counsel appearing for the respondent/defendant would state that the First Appellate Court has not committed any error as it has only received documents subject to proof and admissibility and therefore, no prejudice has been caused to the revision petitioner. It is also her submission that though Ex.B1 was marked during the trial of the suit, only while deciding the suit on merits, the Trial Court has rendered a finding that in the absence of the original cellphone being produced the Compact Disc and pendrive could not be looked into. It is therefore her contention that there was no opportunity for the respondent to produce the cell phone in order for the Court to look into the Compact Disc and pendrive.

6. The learned counsel for the respondent would also state that since there was a delay in preferring the appeal, the application for adducing additional evidence was not filed along with appeal. However, she would also point out to the memorandum of grounds of First Appeal, to drive home her submissions

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that specific challenge has been made to the refusal to receive the Compact Disc and pendrive and further liberty also being reserved for seeking permission to adduce additional evidence. Therefore, the learned counsel for the respondent would pray for dismissal of the present revision petition.

7. I have carefully considered the submission advanced by the learned counsel on either side.

8. Admittedly, an attempt was made by the respondent, pending suit to mark the Compact Disc and pendrive which contained an audio conversation between the plaintiff’s wife and defendant. According to the respondent, if the respondent was able to substantiate the truth and genuineness of the said conversation, then it would have a direct impact on the actual liability of the respondent/defendant and therefore, the said documents were germane. However, while disposing of the suit, despite the Compact Disc and pendrive having been marked during the course of trial, the Trial Court found that since the original mobile phone which had recorded the audio conversation was not produced, the Compact Disc and pendrive were only secondary evidence and cannot be looked into.

9. As rightly contended by the learned counsel for the respondent Mrs.B.N.Sivagama Sundari, it is only after the judgment rendered by the Trial

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Court that the respondent came to know that the Compact Disc and pen drive that were marked during trial were not looked into and rightly, the same has been challenged in the memorandum of ground of appeal as well. No doubt, an application has been filed to receive additional documents viz., the mobile phone which recorded the conversation between the revision petitioner’s wife and the respondent. The First Appellate Court, in normal circumstances, should have posted the said application to be decided along with the main appeal which is settled and accepted practice and at the time of deciding the appeal, if the Appellate Court, forms an opinion that the said document would be necessary for adjudicating the questions that arise for consideration in the appeal, then subject to the mandate of Order 41, Rule 27 CPC, the said additional documents can be received and looked into. The First Appellate Court therefore, clearly fell in error in deciding the said application without postponing the hearing in the said application to be taken up along with the main appeal.

10. Further, as rightly contended by Mr.M.Ravi, in the written statement filed before the Trial Court, there is no pleading with regard to the said conversation between the petitioner’s wife and the respondent/defendant. It is settled law that there can be no evidence in the absence of pleadings. However, these are matters, that can be decided by the First Appellate Court when the main appeal is taken up for final hearing. The Appellate Court should have

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posted the Interlocutory Application under Order 41, Rule 27 CPC also to be decided along with the main appeal proceedings, instead of passing the impugned order which has certainly caused serious prejudice. Merely, receiving the documents, subject to proof and relevancy, is not the proper course of action that too, when such evidence is received in appellate proceedings. Order 41, Rule 28 CPC, specifically deals with the procedure to be adopted by the First Appellate Court when the First Appellate Court permits adducing additional evidence. Even the mandate of Rule 28 CPC, has not been followed by the Appellate Court in the present case.

11. In the light of the above, I am inclined to set aside the order in I.A. No.3 of 2024. However it shall be open to the Appellate Court to decide the I.A along with main appeal and in the event of the Appellate Court finding that the additional document is necessary for decision in the appeal and that the respondent/appellant in the appeal has made out a case for production of additional evidence, then the First Appellate Court shall for reasons recorded in writing, permit evidence to be adduced in line with Order 41, Rule 28 CPC. It is needless to state that if the Appellate Court, comes to the conclusion otherwise, that the additional documents are not necessary and cannot be received, then, it shall be open to the Appellate Court to reject the Application while disposing of the main appeal.

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12. With the above observation, this Civil Revision Petition is disposed of. Consequently, connected Miscellaneous Petition is also closed. No costs.

10.09.2026 Index: Yes/No Speaking/Non-speaking order Neutral Citation: Yes/No RKP To The Principal District Judge, Ariyalur.

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P.B.BALAJI, J. rkp CRP. No.4235 of 2024 and CMP. No.23547 of 2024 10.09.2026

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