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Venukuri Krishna Reddi and anr. Vs. Kota Ramireddi and ors. - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberLetters Patent Appeal No. 29 of 1949
Reported inAIR1954Mad848
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rules 27, 27(1), 27(2) and 33; Madras Code of Civil Procedure (CPC) (Amendment) Act
AppellantVenukuri Krishna Reddi and anr.
RespondentKota Ramireddi and ors.
Appellant AdvocateB.V. Ramanarasu, Adv.
Respondent AdvocateSuryanarayana Rao, Adv.
DispositionAppeal dismissed
Cases ReferredKrishnaswami Naick v. Ayyappa Naick
code of civil procedure (act v of 1908), order xli, rule 33--scope of--reversioner--suit for possession against several alienees--appeal against decree by seven defendants along-- appellate court--no power to set aside decree against all defendants--order, xli rule 27(1)(c)--difference between two rules--admission of additional evidence under --rule 27 (2), provision for reasons to be recorded-- matter of substance--rule only directory--evidence admitted without reasons--need not be excluded.;where, for the sake of convenience, a plaintiff, as reversioner, files a single suit against several defendants for recovery of possession of several items of property held by different defendants under different alienation, it is really a combination of several suits into one. in such a case, if.....1. this is an appeal by the plaintiff against the judgment of panchapakesa aiyar j, in s. a. no. 2159 of 1945. the suit was for recovery of possession of eight items of immoveable properties on the ground that they belonged to one buchipudi kami reddi and that the plaintiff and defendants l and 2 were entitled to them as his reversioners. the following geneological table will bring out the relationship of the parties as set out in the plaint.rammi reddi=lakshmamma|||--------------------------------------------------| | mahalakshmamma= lakshmi devamma= v. krishna reddi k. krishna reddi | | | k. rami reddi | (deft.2) |-----------------------------------------------| |g. chandra reddi v.appi reddi (piff.) (deft.)the plaintiff alleged that after the death of rami reddi, his widow and his.....
1. This is an appeal by the plaintiff against the judgment of Panchapakesa Aiyar J, in S. A. No. 2159 of 1945. The suit was for recovery of possession of eight items of immoveable properties on the ground that they belonged to one Buchipudi Kami Reddi and that the plaintiff and defendants l and 2 were entitled to them as his reversioners. The following geneological table will bring out the relationship of the parties as set out in the plaint.






| | Mahalakshmamma= Lakshmi Devamma= V. Krishna Reddi K. Krishna Reddi | | | K. Rami Reddi | (Deft.2) |


| |

G. Chandra Reddi V.Appi Reddi (Piff.) (Deft.)

The plaintiff alleged that after the death of Rami Reddi, his widow and his daughters had effected alienations of the suit properties without any necessity, that those alienations were not binding on the reversioners and that the plaintiff was entitled to partition and delivery of one-third share therein. Defendants 1 and 2 admitted the claim of the plaintiff. The other defendants contested the suit mainly on the ground that the properties did not devolve on Lakshmamma as the widow of Rami Reddi but that the brother of Rami Reddi who took the properties by survivorship had settled them on her for her lifetime in lieu of her claim for maintenance. They also contended that the alienations were supported by necessity and binding on the reversioners.

Defendants 7 to 12 raised a further plea that Rami Reddi had no daughter of the name of Mahalakshmamma and that the plaintiff and the first defendant were not reversioners to his estate. The District Munsif who tried the suit held that the plaintiff has established the relationship set out in the plaint, that the suit properties belonged to Rami Reddi and that the alienations were not binding on the rcversioners. He accordingly granted a decree for partition and delivery of one-third share of the suit properties with mesne profits in favour of the plaintiff. There was an appeal by defendants 8 to 12, 15 and 20 to 32 in respect of items 2, 3, 2/3rd share of item 4 and item 8, A. S. No. 436 of 1943 on the file of the Subordinate Judge of Guntur. The fourth defendant also preferred an appeal. A. S. No. 125 of 1944 in the court, of the Subordinate Judge of Guntur and that related to 62 cents in item No. 1. There was no appeal in respect of the other items of properties and the defendants who were interested in those items were not even parties to the above appeals.

2. At the hearing of the appeals, A. S. No. 436 of 1943 and A. S. No. 125 of 1844, an application was made for admission of fresh documents. The same was ordered and the documents were marked as Ex. D. 9 series. Relying mainly on those documents, the Subordinate Judge held that Mahalakshmamma was not proved to be the daughter of Rami Reddi and that, therefore, the plaintiff was not the reversloner to his estate. He also held that the suit properties did not belong to Rami Reddi. On these findings, he set aside the decree of the District Munsif and dismissed the suit not only as against those defendants who had filed the appeals but also against the other defendants who had not. This he did in exercise of his powers under Order 41, Rule 33.

The plaintiff appealed to this court against this decision, S. A. No. 2159 of 1945. That was heard by Panchapakesa Aiyar J. who agreeing with the Subordinate Judge dismissed the appeal. Against this judgment this appeal has been preferred under Clause 15 of the Letters Patent the learned Judge having granted leave therefor.

On behalf of the appellants two contentions have been pressed before us: (1) that additional evidence was wrongly admitted in appeal by the Subordinate Judge and (2) that the dismissal of the suit even as against defendants who had not preferred any appeal was improper,

3. On the first question the provision of law which authorises the taking of additional evidence in appeal is Order 41, Rule 27 which, as amended in Madras, runs as follows:

"27(1) The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court, but if:

(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the party seeking to adduce additional evidence satisfies the Appellate Court that such evidence notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed,

(c) the Appellate Court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness examined.

(2) Wherever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission."

4. The complaint of Mr. B. V. Ramanarasu, the learned advocate for the appellants, is that the Subordinate Judge gave no reasons for admitting additional evidence in appeal, that the requirements of Order 41, Rule 27(2), C. P. C. have not been complied with and that in consequence Ex. D. 9 series ought to be excluded from consideration. It is not in dispute that no order was passed recording reasons for admitting Ex. D. 9 series in evidence and that there has thus been a contravention of Order 41, Rule 27(2). We are not disposed to hold that this is a mere formal defect. When a suit has been fully tried and judgment given, it is a serious matter to permit the trial to be reopened in the court of appeal by admitting fresh evidence. Such a course must tend to prolong the litigation and result in failure of Justice. That is why Order 41, Rule 27(1) confines the power to admit additional evidence in appeal within narrow limits.

Apart from cases in which evidence is wrongly rejected in the trial court for which provision is made in Order 41, Rule 27(1)(a), reception of evidence is limited to two classes of cases: Where the parties seek to get it admitted, Rule 27 (1)(b) and where the court requires it to pronounce judgment Rule 27(1)(c). The scope of the two provisions is different. While Rule 27(1) (b) enables the parties to apply for admission of additional evidence and that is subject to the condition that such evidence could not have been produced in the trial court in spite of diligence, Rule 27(1)(c) empowers the court to admit additional evidence whenever it feels that the same is necessary to enable it to pronounce judgment. While under Rule 27(1)(b) an application for admission of additional evidence should be filed with promptitude and could be heard at any time, the proper occasion to make an order for admission under Rule 27(1)(c) is when the court finds during the hearing of the appeal that there is some lacuna. Thus the conditions under which admission of additional evidence could be made differ as they fall under Order 41, Rule 27(1)(b) or Order 41, Rule 27(1)(c) and this difference is no formal matter as it is well settled that evidence admitted without satisfying the conditions of Order 41, Rule 27(1) must altogether be excluded from the record.

5. In -- 'Manmohan Das v. Mst. Ram Dei', AIR 1931 PC 175 (A), the question was whether the evidence of one Dube was properly admitted under the provisions of Order 41, Rule 27(1) of the Civil Procedure Code. After holding that it was not, Lord Macmillan, observed:

"In these circunsstances their Lordships cannot regard the introduction of Mr. Dube's evidence otherwise than as highly irregular, and in their opinion it must be entirely discarded".

This question was considered recently by the Supreme Court in -- 'Arjan Singh v. Karthar Singh', AIR 1951 SC 183 (B). There the point for determination was whether the High Court could in second appeal interfere with the finding of the District Judge on a question of fact based on additional evidence admitted in appeal. In holding that it could, Chandrasekhara Aiyar J. observed as follows:

"The discretion to receive and admit additional evidence is not an arbitrary one, but 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 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."

If additional evidence can be taken into consideration only if it has been properly admitted how is it to be determined whether it has been properly admitted unless reasons therefor are given? It is for this reason that Order 41, Rule 27(2) enacts that the court should record reasons for admitting additional evidence. It is, therefore, a matter of substance that the court should comply with the requirements of that provision.

6. But then the question is whether evidence admitted without according reasons for such admission under Order 41, Rule 27(2) becomes inadmissible for that reason? There is considerable authority for the position that Rule 27(2) is directory and not imperative. Vide -- 'Gopal Singh v. Jakri Rai', 12 Cal 37 (C). That only means that even though no reasons have been recorded before admitting evidence under Order 41, Rule 27(1) if the reception of such evidence could be justified under that rule it cannot be excluded from consideration. Vide -- 'Iswar Chandra v. Jogendra Lal', AIR 1927 Cal 126 (D). The only effect of the failure to comply with Order 41, Rule 27(2) is to throw on the party who relies on the additional evidence the burden of sustaining its admission under Order 41, Rule 27(1).

In -- 'Biradhmal v. Prabhabati Kunwar', AIR 1399 PC 152 (E) the evidence of one Kishan Swaroop was admitted under Order 41, Rule 27 (1) with out recording reasons. In spite of it, the Privy Council held this evidence to be admissible as it found that it was a proper case for admission. In -- 'Narasimhamurthi v. Hayat Khan', A1B 1940 Mad 911 (F), where additional evidence had been admitted without recording any reasons therefor, Leach C. J. and Krishnaswami Aiyangar J. observed:

"Now what is the position here? In the first place the Subordinate Judge has not recorded his reasons for admitting the evidence which he is required to do by Order 41, Rule 27(2). This may be an oversight, but it is an oversight which involves failure to comply with mandatory provisions of the Civil Procedure Code."

The learned Judges then proceeded to discuss whether admission of additional evidence could be justified under Order 47, Rule 27(1); and holding that it could not be, they set aside the decree based on that evidence.

7. Adopting these principles it has to be examined whether the admission of additional evidence in this case could be upheld under Order 41, Rule 27(1)(b) or (c). It could not be sustained under (1)(b) in view of the observations of the Subordinate Judge in paragraph 9 of his judgment that the appellants before him

"could have with a little more diligence secured and filed the documents, Ex. D. 9 series before the trial court itself."

Panchapakesa Aiyar J. was prepared to infer that the lower court admitted Ex. D. 9 series as additional evidence as

"they were evidently deemed by it to be necessary for delivering a correct judgment regarding the main point in dispute".

If this is correct, then the admission of Ex. D. 9 series could be justified under Order 41, Rule 27(1)(c). Though the matter is not clear, we are not disposed to differ from the learned Judge in his reading of the judgment. In this view Ex. D. 9 series must be held to have been properly admitted in evidence and the finding of the lower court based thereon is not open to attack being one of fact.

8. The next point for determination is whether the dismissal of the suit by the lower appellate court not only against those defendants who had preferred appeals but even as against those who had not, was proper and legal. That depends upon whether that could be justified under Order 41, Rule 33, C. P. C. In -- 'Subramania Chettiar v. Sinnammal', AIR 1930 Mad 801 (G) a Full Bench of this court had occasion to consider the scope of Order 41, Rule 33. There, the contention that was advanced was that even though the language of that rule was wide, it must be read subject to Order 41, Rule 22 and other statutes such as Limitation Act and Court-fees Act; and that, so read it conferred no Jurisdiction on the court to pass a decree in favour of a party who had preferred neither an appeal nor a cross-appeal. This court rejected that contention and held that having regard to the wide terms in which the rule was couched it must be held to confer a jurisdiction to pass a decree in favour of a party even though he had not filed an appeal or a cross-appeal.

In that case, the interference under Order 41, Rule 33 was in favour of the respondent who had not preferred a cross-appeal but as the rule provides that a decree may be passed in favour of the respondent or a party even though no appeal has been preferred, it must be held that the jurisdiction conferred by it extends to passing a decree in favour of a party to the suit even though he is not a party to the appeal. The decree passed by the Subordinate Judge in the present case cannot, therefore, be said to be without jurisdiction.

9. But the question still remains whether there has been a proper exercise of the jurisdiction under Order 41, Rule 33. This is what the subordinate Judge observes on this aspect of the matter:

"Though only some of the defendants have appealed and the others have not inasmuch as I have now held that the first respondent (plaintiff) is not the daughter's son of Rami Reddi and would not, therefore, be entitled to maintain the suit and that the suit properties have not been proved to have belonged exclusively and been in the possession of Rami Reddi at the time of his death and inherited by his widow thereafter the whole suit will have to be dismissed. Vide Order 41, Rule 33, C. P. C."

It is obvious that the Subordinate Judge was of the opinion that on his findings the dismissal of the suit in its entirety must follow automatically under Order 41, Rule 33. This is clearly erroneous.

'AIR 1930 Mad 801 (G)' does no doubt decide that there is jurisdiction in a court to pass a decree in favour of a person who has not filed an appeal but it does not decide that the court was bound to pass such a decree as a matter of course, without regard to the circumstances. On the other hand, the following observations occurring therein will suffice to show that, that is not the correct position:

"No doubt learned Judges have remarked that the provision embodied in this rule should be used with care and caution; but that does not mean that the appellate court has no jurisdiction under it to dismiss the plaintiffs' suit 'in toto'. The court is not bound to interfere in every case in which it has the power to do so; it is in this connection that the question of judicial discretion comes in. There may no doubt be cases where no excuse or justification could be found for a party not having preferred an appeal or a memorandum of objections, in which cases justice may not require the exercise of powers under Order 41, Rule 33, and the appellate court will be well advised in not exercising such powers."

As the Subordinate Judge has failed to consider the question whether on the facts it was a case for exercise of the powers under Order 41, Rule 33 it becomes necessary for this court to determine whether the dismissal of the entire suit by him could be justified under that rule.

10. Though Order 41, Rule 33 confers wide and unlimited jurisdiction on courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well defined principles in accordance with which that jurisdiction should be exercised. Normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to nun under Order 41, Rule 33. As observed in -- 'Jawahar Bano v. Shujaat Hussain Beg', AIR 1921 All 367 (H) explaining the decision of the Full Bench in -- 'Rangamlal v. Chandu', 34 All 32 (I):

"where there is no sufficient reason for a respondent neglecting either to appeal or to file objections the courts will hesitate before allowing him to object at the hearing or the appeal."

In -- 'Abjal Majhi v. Intu Bepari', AIR 1916 Cal 250 (J) Mukherjee J. observed:

"This rule is no doubt very widely expressed; but clearly, it should not be applied so as to enable a party litigant to ignore the other provisions of the Code or provisions of statutes like those which relate to the limitation or payment of court-fees".

Vide also -- 'Akimannessa v. Bepin Behari', AIR 1916 Cal 261 (K). But there are well recognised exceptions to this rule. One is where as a result of interference in favour of the appellant it becomes necessary to re-adjust the rights of other parties. This might happen when A files a suit claiming a relief in the alternative against B or C and obtains a decree against B and not against C and in an appeal fay B the court holds that it is C and not B that is liable. That is the illustration to the rule. The decisions in -- 'Charubala Dasi v. Nihar Kumari Dasi', AIR 1927 Cal 831 (L) and -- 'Kannuswami Chetti v. Rabimath Animal', AIR 1933 Mad 806 (M) are other instances of the application of this principle.

A second class of cases based on the same principle is where the question is one of settling mutual rights and obligations between the same parties. The decision in the -- Attorney General v. Simpson', 1901-2-Ch. 671 (N) is a leading authority falling under this category. There the plaintiff sued for a declaration that the public were entitled to use the locks in a river without payment of tolls and that the defendant was bound to maintain them in good condition. The trial court held that the public had the right to use the locks free of charge and that the defendant was not bound to maintain them. In an appeal preferred by the defendant the court held that the public were bound to pay tolls for the use of the locks. It also declared, under Order 58, Rule 4 of the Rules of the Supreme Court corresponding to Order 41, Rule 33, Civil P. C., that the appellant was under an obligation to maintain them in good condition. This principle has been followed in a number of decisions in the Indian Courts.

A third class of cases in which this rule has been applied is when the relief prayed for is single land indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory.

-- "Thirumalachariar v. Athimoola Karayalayar', AIR 1933 Mad 529 (O), relied on by the respondent is a case of this kind. There, the suit was to enforce an agreement to convey lands stated to have been executed by one Nambi Kone. The defendants to the suit were his widow, and daughter, defendants 1, and 7 and his reversioners defendants 2 to 6. The suit was contested by the latter on the ground that the agreement was not genuine. The Subordinate Judge upheld this contention and dismissed the suit as against them but as against defendants 1 and 7 there was an ex parte decree. On appeal by the plaintiff this court agreed with the Subordinate Judge that the agreement was not genuine and confirmed the decree as against defendants 2 to 6. This court also vacated the ex parte decree against defendants 1 and 7 in exercise of the powers under Order 41, Rule 33 though no appeal had been preferred by them. As the suit was for specific performance of a particular agreement it would obviously be inconsistent to direct the execution of it by some and not by others. If the suit had been decreed against ail the defendants, and defendants 2 to 6 alone had preferred an appeal this court could have under the provisions of Order 41, Rule 4 allowed, the appeal in favour of all the defendants and it is the self-same result that was reached under Order 41, Rule 33.

These are well recognised classes of case in which it would be legitimate to exercise the powers under that rule even though there was no appeal relating to the subject-matter. This, however, is not intended to be an exhaustive enumeration of the classes of cases in which courts could interfere under Order 41, Rule 33. Such an enumeration would neither be possible nor even desirable for situations might arise which cannot be foreseen or predicted in which the court must have the power to exercise its jurisdiction under that rule. As observed by Jenkins C. J. in -- 'Gangadhar v. Banabhashi', AIR 1914 Cal 722 (P), "no hard and fast rule can be laid down". But however extensive this power may be, one principle can be taken to be well established: it is that when a party having right to appeal fails to do so, relief should ordinarily be refused to him under Order 41, Rule 33. If the matter falls under one or the other of the classes of cases mentioned above if there are special circumstances, the court might exercise its power under that rule in the interests of justice but subject to such exceptions the court will exercise a sound discretion in refusing to grant relief under that rule to one who has submitted to the decree. As held by the Privy Council in -- 'Chokalingam Chetty v. Seethai Ache', AIR 1927 P. C. 252 (Q), the right which a decree-holder has under a decree when the time for appealing against it has expired is a valuable one and courts must act with considerable caution and reserve before depriving him of that right by invoking the powers under Order 41, Rule 33. Having regard to these principles the question has to be determined whether the exercise by the subordinate Judge of the power under Order 41, Rule 33 is in the instant case proper.

11. Now what are the facts? A reversioner files a suit to recover possession of his share of eight items of properties. They are held by different defendants under different alienations, some of which might be valid and others not. There is no community of interest between them. Indeed the plaintiff could have filed a separate suit in respect of each item and impleaded as defendants therein only the alienee interested in that item In that event, if all the suits were decreed but an appeal were to be preferred against the decree in only one of them and that appeal allowed that would not operate as reversal of the decrees in the other suits; nor would there be any power in the court to set aside those decrees under Order 41, Rule 33

Should it then make a difference when the plaintiff has, for convenience, combined several suite into one and if so, on what principle? Such a case doss not fall within any of the recognised categories in which courts have interfered under Order 41, Rule 33. It is not necessary for granting relief to the alienee-appellant, that the decree against the non-appealing alienees should be annulled. Nor could there be any question of there coming into existence two inconsistent and contradictory decrees as they relate to different properties. There will, no doubt, be conflicting findings in the judgments, but that, however, is not material as what has to be seen is that there are no conflicting decrees such as might result in uncertainty, confusion and even impossibility in execution thereof. Nor are there any exceptional circumstances calling for any Interference under Order 41, Rule 33.

12. It is now necessary to examine the authorities cited at the Bar. In -- 'Somasundaram Chettiar v. Vaithialinga Mudaliar', AIR 1918 Mad 794(2) (R), relied on by the respondent there was a suit by certain reversionsrs to recover possession of properties alienated by two widows, Chockammal and Murugathal. The Subordinate Judge held that the alienations were not binding on the reversioners and decreed the suit. Some of the alienees took up the matter in appeal. This court held that the right of the reversioners had become extinguished by the law of limitation and on that ground allowed the appeals. With reference to the defendants who had not filed any appeals this court dismissed the suit as against them under Order 41, Rule 33 relying on the observations of Subramania Aiyar J. in -- 'Kulaikada Pillai v. Viswanatha Pillai', 28 Mad 229 at p. 234(S), that when a claim is barred by limitation no decree for any portion of it could stand.

As against thus decision which undoubtedly supports the respondent, the appellant relied on a later decision of this court in -- 'Venkatakrishnayya v. Chinna Veerareddi', AIR 1928 Mad 1144 (T). There the suit was by a reversioner to recover possession of six items of properties after setting aside several alienations. The District Munsif decreed the suit in respect of items 1, 2, 3, 4 and 6. There was an appeal by defendants 19 and 21 with reference to item No. 4, their contention being that the plaintiff was not the nearest reversioner. The Subordinate Judge accepted this contention and not merely allowed the appeal in respect of item No. 4 but further dismissed the suit as regards items 1, 2, 3 and 6 under Order 41, Rule 33, though they were not the subject-matter of the appeal. The plaintiff having preferred a second appeal to this court Ramesam and Thiruvenkatachariar JJ. held that inasmuch as there was no need to dismiss the suit in respect of items 1, 2, 3, and 6 for the purpose of doing justice to the appellants who were interested only in item No. 4, p. 41, Rule 33 was inapplicable and that further as in substance there were really two distinct decrees there was neither hardship nor real anomaly by reason of the inconsistency in the ground on which they rested. This decision completely supports the contention of the appellant and we are inclined to follow it as on the facts it is on all fours with the present case.

13. Considering the question on principle, when a decree is in substance a combination of several decrees against several defendants, there is no reason why an appeal presented by one of the defendants in respect of his interest should enure for the benefit of the other defendants with reference to their interests. This principle has been applied in quite a number of authorities. Vide -- 'Gyan Singh v. Ata Hussain', AIR 1921 All 56 at p. 58 (U); 'Mahendranath v. Khetra Mohan Bera', AIR 1928 Cal 593 (V); 'Daroga Rai v. Basdeo Mahto', AIR 1937 Pat 40 (W), and -- 'Mohan Bikram Shah v. Deo Narain', AIR 1945 Pat 453 (X). This principle would appear to have been accepted by the learned Judges in 'AIR 1933 Mad 529 (O)', for after referring to the decision in 'AIR 1918 Mad 794 (2) (R)', they observed:

"That perhaps is a more extreme application of Rule 33 of Order 41, because it will be seen that the suit, though the plaintiff according to our usual procedure was allowed to bring his suit against a number of alienees, was in essence a bundle of suits, and yet, when the basis of those suits was found to fail, the appellate court gave the benefit of that decision to the alienees who had not appealed and who were in a strict view of the position defendants in different suits from those in which the appeals came before the court."

It is clear from these remarks that the learned Judges held that 'AIR 1918 Mad 794 (2) (R)', had gone to the very verge of the law. We are of opinion that it had gone beyond it, and could not be supported on principle, and that 'AIR 1928 Mad 1144 (T)', should be followed in preference to it.

14. Before Panchapakesa Aiyar J. and before us the decree was sought to be supported on the ground that the plaintiff had come to the court with a false case and that Order 41, Rule 33 was, therefore rightly invoked against him. Reliance was also placed on -- 'Krishnaswami Naick v. Ayyappa Naick', AIR 1915 Mad 227 (2) (Y), the effect of which was thus stated by Reilly J. in 'AIR 1933 Mad 529 at p. 531 (O)',

"If it was found on appeal that the suit was based upon a false claim then the whole suit could be dismissed even as against those who had not appealed or had not contested the suit".

The correctness of the decision in 'AIR 1915 Mad 227 (2) (Y)', was doubted by the learned Judges who decided 'AIR 1928 Mad 1144 (T)', and we are inclined to share that doubt, and the observations of Reilly J. are a colourless statement of the effect of the decision in 'AIR 1915 Mad 227 (2) (Y)', and cannot be said to add to its weight.

But even apart from that, we are unable to take the view that the case of the plaintiff was false. That he was a reversioner was admitted by relations most interested in denying it such as the second defendant. It was admitted by the 14th defendant who is the contesting respondent before us. It was denied only by defendants 7 to 12 who are strangers to the family. Three elderly witnesses, P. Ws. 2 to 4, against whom nothing could be said deposed to the relationship as pleaded by the plaintiff and the District Munsif believed them. It is true that the Subordinate Judge on a consideration of the additional evidence adduced in appeal held that the plaintiff had not established his relationship but it will be too much to conclude therefrom that the plaintiff had put forward a false case. The utmost that could be said against him is that he failed to convince the Subordinate Judge of the truth of his case. We are unable on these materials to hold that the case of the plaintiff is demonstrably false. We think that the ground put forward by the respondent is too uncertain and elusive to deprive the plaintiff of the fruits of his decree by invoking the power under Order 41, Rule 33, C. P. C.

15. In the result this appeal will be dismissed with proportionate costs as against defendants 4, 8 to 12, 15, 20 to 22, and in so far as it relates to 62 cents in item No. 1, items 2, 3 two-third share in item No. 4 and item No. 8. It will be allowed as against the other defendants and in respect of items other than those mentioned above and the decree of the District Munsif will to that extent be restored with proportionate costs throughout.

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