SMT. SARADA AND ORS. versus MANIKKOTH KOMBRA RAJENDRAN

Citation: [1996] SUPP. 1 S.C.R. 624 · Decided: 22-04-1996 · Supreme Court of India · Bench: K. RAMASWAMY · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
SMT. SARADA AND ORS. 
v. 
MANIKKOTH KOMBRA RAJENDRAN 
APRIL 22, 1996 
B 
[K. RAMASWAMY AND G.B. PATTANAIK, JJ.] 
Code of Civil Procedure, 1908 : 
Order 41, Rule 27-Additional evidence-Filing of-Property sold as a 
C collateral security-Subsequent agreement mentioning receipt of considera-
tion-Appellate court refusing to take the document as additional 
evidence-Held : Appellate court ought to have received the additional 
evidence and considered the effect thereof by either recording the evidence of 
the paities or calling a finding on it fi'om the trial cowt-Without that it would 
not be possible to render fair justice between the parties-Appeal remitted 
D back to the appellate court to follow the procedure and dispose of the appeal 
in accordance with law. 
E 
F 
G 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7739 of 
1996. 
From the Judgment and Order dated 4.8.95 of the Kerala High Court 
in S.A. No. 886 of 1990-E. 
B.Y. Deepak and G. Prakash for the Appellants. 
The following Order of the Court was delivered : 
Though the respondent has been served, he is not appearing either 
in person of through counsel. 
Leave granted. 
The admitted position is that one T. Sekharan was the owner of the 
property. He sold 17 cents of land under Ex. A-2, dated 14.7.1982. He was 
impleaded as the first defendant in the suit laid for recovery of the 
possession on the ground that after the sale there was an contemporaneous 
agreement to permit the respondent to remain in possession for a period 
H of four months and on expiry thereof, he was to surr ~nder his possession. 
624 
SARADA v. MANIKKOTH KOMBRA RAJENDRAN 
625 
Since he had not surrendered the possession, notice Ex. A/4, was issued A 
on December 10, 1982 and on his failure to vacate the same, suit was laid 
for recovery of possession. Since the first defendant died, the appellants 
were brought on record as party defendants to the suit. It is their case that 
the respondent is a money-lender and the property sold was to obtain a 
loan and he had obtained the sale deed as a collateral security for repay-
ment of the loan of a sum of Rs. 20,000. After the dispute had arisen, there 
was an agreement entered by the first defendant and the respondent in the 
presence of the Sub-Inspector of Police which formed part of the agree-
ment, which reads as under : 
B 
"Agreement executed BETWEEN 'A' PARTY, Rajendran, 42 
C 
years, son of Manikooth Kombra Chalil Damudaran. Kacheri 
Amson, AND 'B' Party, Sekharan, aged 60 years, son of Thaikandy 
Gopalaln, Amarasseri Amson Desom. 
Whereas A party had given a complaint before the Kakkur 
Police Station upon the B Party not acting in accordance with the D 
agreement whereby the Parammel property owned by B party had 
bee_n sold to A party, and whereas both parties spoke under the 
· mediation of the station Sub-Inspector; and 
. 
Whereas the parties have jointly agreed to the terms stated E 
· bel.ow and have accordingly executed this agreement in the 
. presence of the witnesses who have signed below this the 4th day 
'ofJan:uary, 1983 and retained one copy each of this agreement. 
: It is agreed - · 
. .. That B party shall-pay A party Rs. 35,000 (Rupees Thirty Five 
Thousand only) on or before and that the Parammal property in 
I 
. 
the possession of .A party shall then he given to B party at his 
F 
expense .. if the B party acts contrary thereto, he should vacate and 
·hand ~ver the ab0ve said Pararnmel property to A party. Further, G 
·A Party will have the right against B party to take steps in 
accordance .with ·law." 
The trial Court decr~ed the suit accepting that Ex. A-2 is a sale and 
the appellants are liable to surrender possession as sub-lessees. In the 
ap_peal, the appellants raised the i_ssue regarding the agreement referred to H 
626 
Sl IPRF~tl' CUURT REPORTS [ J9%J SUPP. l S.L.R. 
A 
hcrcinbefl1r~ and ~ought to pl:.tce this document as an additional evidence 
under Order ~l, Ruic 27 CPC etc. The appellate Court rejected the same. 
In the s~cun<l appeal, the 1-Egh Court has dbn1i.'-.sed the appeal conrinning 
the decree fur possession. Thu\ this appeal by special leave. 
Since it is the case of the appellants that T. Sckharan h;id sold the 
B 
property as a collateral security and \Vhcn the agrl'e111ent subsequently 
entered intn clearly mentioned receipt of Rs. 3.'1))00 as consideration of the 
property, it Wlllll<l indicate that the parties had the sale Ex. A-l is only a> 
''collateral security. Under the

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