(Prayer: Second Appeal filed under Section 100 of Civil Procedure Code to set aside the Judgment and decree of the first appellate Court dated 09.01.2026 made in A.S.No.11 of 2025 on the file of Principal District Court, Tenkasi, reversing the finding of judgment and decree dated 18.07.2024 made in O.S.No.55 of 2022 on the file of Principal Sub Court, Tenkasi and allow the above second appeal.)

1. The plaintiff in O.S.No.55 of 2022, being a suit for specific performance, is the appellant, aggrieved by the reversal findings rendered by the first appellate Court.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. I have heard Mr.S.Mukunth, learned Senior Counsel appearing for the appellant / plaintiff and Mr.N.Ganagasapapathy, learned counsel for the respondent / defendant.

4. The second appeal was admitted on 09.04.2026 on the following substantial question of law:

                     “ I. Whether the additional documents marked as Ex.B2 to Ex.B10, produced before the first appellate Court in the absence of any pleadings relating to them, would entitle the first appellate Court to rely upon those documents and reverse the findings of the trial Court by holding that the suit agreement was a sale agreement and not a loan transaction?

5. Brief facts that are necessary for decision in the second appeal are as follows:

The plaintiff sought for specific performance of an agreement dated 22.11.2019 in respect of approximately 4 cents. The suit was resisted by the defendants contending that the defendant had only borrowed a loan and never intended to sell the suit property to the plaintiff. The trial Court finding that the defendant had not established the plea that it was only a loan transaction and the agreement was executed for security purpose, proceeded to grant a decree for specific performance. Pending the first Appeal filed by the defendant, an application was taken out for adducing additional evidence and Ex.B2 to Ex.B10 were sought to be marked on the side of the defendant. The first appellate Court allowed the application and referring to the additional documents, non suited the plaintiff by finding that the transaction was only a loan transaction and the defendant never intended to sell the suit property to the plaintiff.

6. Arguments of Mr.S.Mukunth, learned Senior Counsel for appellant/plaintiff:

                     6.1. Firstly, it is contended by the learned Senior Counsel, Mr.S.Mukunth, that once the first appellate Court had come to a decision that the additional documents ought to be received in evidence, then the Court ought to have granted an opportunity to the appellant / plaintiff to rebut the said additional evidence. He would point out that there has been no opportunity that has been given to the appellant / plaintiff and therefore, on this very ground of failure to apply the mandate of Order XLI (41) Rule 27 and Rule 28 of the Code of Civil Procedure, the judgment of the first Appellate Court, relying on the additional evidence has to be necessarily set aside. He would also invite my attention to the fact that the sale consideration was Rs.7.5 lakhs and Rs.7 lakhs had already been paid as advance and the remaining Rs.50,000/- was also paid immediately after the decree passed by the trial Court and the plaintiff had established her readiness and willingness entitling her to a decree of specific performance.

                     6.2. Mr.S.Mukunth, learned Senior Counsel, would further state that the defendant, who sought to adduce additional evidence by way of marking documents relating to a suit for recovery of money between the same parties before the Poonamalli District Court should not have been afforded an opportunity for the simple reason that the defendant had not pleaded about the said suit in the written statement. It is therefore contended by the learned Senior Counsel that in the absence of pleadings, no evidence should be permitted.

                     6.3. Drawing my attention to the memorandum of second appeal challenging the application filed under Order XLI (41) Rule 27 CPC, the learned Senior Counsel placed reliance on the following decisions:

                     1. Judgment of the Hon'ble Supreme Court in Corporation of Madras and another V. M.Parthasarathy and others reported in 2018-9-SC-445.

                     2. Judgment of this Court in A.Meiazhagan V. Mangayarkkarasi in A.S.No.640 of 2016 dated 25.04.2017.

7. Arguments of Mr.N.Ganagasapapathy, learned counsel for the respondent / defendant:

                     7.1. Per contra, Mr.N.Ganagasapapathy, learned counsel for the respondent would state that the defence taken by the defendant was that the transaction was only a loan / borrowing transaction and not an intended sale agreement and therefore, such a plea was already in the written statement and there was nothing wrong, irregular or improper for the defendant to rely on the proceedings for recovery of money between the same parties. He therefore contends that it was an incidental to the plea taken in the written statement. He would also state that the plaintiff, agreeing for a total sale consideration of Rs.7.5 lakhs, would not seek for two years to pay the balance amount of Rs.50,000/-, this itself established that the agreement was only a loan transaction.

                     7.2. In this regard, the learned counsel would rely on my decision in Subhash Chand Jain V. S.Chukki Bai, in C.S.No.392 of 2015 dated 12.07.2024 and the decision of this Court in M.Palaniayappan (died) V. Savithri, in S.A.No.721 of 2013 dated 10.08.2023.

                     7.3. Mr.N.Ganagasapapathy, learned counsel also relied on the judgment of the Hon'ble Supreme Court in Union of India V. Ibrahim reported in (2012) 8 SCC 148 and justified the additional evidence being permitted by the first appellate Court and therefore prayed for the dismissal of the second appeal.

8. I have carefully considered the submissions advanced by the learned Senior Counsel for the appellant and the learned counsel for the respondent.

9. Discussion:

                     9.1. No doubt, the suit sale agreement is a registered one, dated 22.11.2019. The sale consideration reflected in the said agreement exhibited as Ex.A2 before the trial Court is Rs.7.5 lakhs and the agreement records payment of Rs.7 lakhs. In respect of the balance sale consideration 2 years time has been fixed. It is relevant to keep in mind that the plaintiff and the defendant are close relatives. The trial Court, holding that the defendant has not established the plea of loan or borrowing, decreed the suit for specific performance. However, before the first Appellate Court, the defendant took out an application to mark additional evidence and the additional documents were in the nature of civil proceedings for recovery of money before the Poonamalli District Court, where the plaintiff had filed a suit for recovery of Rs.18.5 lakhs, arising out of creation of promissory notes, in O.S.No.397 of 2023. The first Appellate Court has found that the plaintiff has suppressed the pendency of the suit. The very fact that the relationship between the parties is only in the nature of lender and borrower and the agreement and promissory note are on the same date as well, it would clearly establish that the parties never intended to enter into an agreement of sale and the agreement was only for the purpose of securing the amount borrowed by the defendant.

                     9.2. Firstly, I shall deal with the absence of plea regarding the said money suit. Admittedly, both the plaintiff as well as the defendant despite having an opportunity to bring these facts to the knowledge of the trial Court, did not choose to do so. The crux of the defence in the suit for specific performance is that the suit agreement that was marked as Ex.A2, was only a security for the loan transaction, admittedly, on the same day of executing the promissory note by the defendant in favour of the plaintiff. The suit for recovery of money has been filed before the Additional District Court, Poonamalli and the same is pending. In the light of the defence taken by the defendant that the transaction is only a loan transaction and not an intended sale, I find that such a defence plea is sufficient to seek reliance on the additional documents, which are pertaining to the suit for recovery of money from the plaintiff, based on execution of promissory note, which was also executed on the same date of Ex.B2.

                     9.3. In such view of the matter, I do not find any irregularity committed by the first appellate Court in allowing the application filed under Order XLI (41) Rule 27 CPC.

                     9.4. However, the first appellate Court had committed a serious error in not complying with the mandate of Order XLI (41) Rule 28 CPC.

                     Order XLI (41) Rule 28 CPC, is extracted hereunder for easy reference:

                     “28. Mode of taking additional evidence.—Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court.”

9.5. The first appellate Court having decided to permit the defendant to let in additional evidence should have either taken evidence by itself or remitted the matter to the trial Court. In fact, there is a further requirement under Order XLI (41) Rule 29 CPC and the first appellate Court having allowed Rule 27 CPC had to have specifically narrowed down the point on which the evidence is to be confined, so that, the parties will also be aware of the scope and nature of evidence that is required to be let in. Having taken up the decision in the interlocutory application under Order XLI (41) Rule 27 CPC along with the appeal and once the first appellate Court had come to the conclusion that the additional evidence will have to be permitted, then the first appellate Court was obligated to follow the mandate of Rules 28 and 29 of Order XLI (41) CPC. The said exercise, admittedly, has not done by the first appellate Court. The appellant therefore lost an opportunity to rebut the additional evidence which has been permitted to be adduced on the side of the appellant.

                     9.6. The Hon'ble Supreme Court in Corporation of Madras's case, held that when such opportunity is denied, it would cause serious prejudice to the litigant.

                     9.7. Meiazhagan's case has been relied for the proposition that when additional grounds are raised in the appeal without pleadings, in compliance with Order VI CPC, then an application at the appellate stage either by way of affidavit or pleadings (plaint or written statement) cannot be filed. It is also held that an application under Order XLI (41) Rule 27 to introduce evidence, without pleadings cannot be permitted. However, this was a case, where the defendant had been set exparte and in such circumstance, this Court held that the defendant had to re-suit to Order IX Rule 13 CPC by showing sufficient cause to set aside the exparte decree and without doing so, cannot maintain the application under Order XLI (41) CPC. This decision is therefore not applicable to the facts of the present case.

                     9.8. Even though it is contended by Mr.N.Ganagasapapathy, learned counsel for the respondent that the plaintiff has not been ready and was willing on the express terms of the agreement Ex.A2, it was never intended to be a sale agreement and it was only by way of a security, in view of the fact that the trial Court originally granted a decree for specific performance and the first Appellate Court has reversed the same. The question of readiness and willingness cannot be tested without providing an opportunity, that too, solely relying on the additional documents, without following Order XLI (41) Rule 28 and 29 CPC. I am unable to accept the arguments of Mr.N.Ganagasapapathy, learned counsel for the respondent that the findings of the first Appellate Court dismissing the suit for specific performance should be confirmed.

                     9.9. In the light of the above discussion and in the interest of the the parties, I am inclined to remit the matter to the first appellate Court. The scope of evidence shall be limited to the additional evidence that has been permitted to be adduced on the side of the plaintiff. The defendant shall be cross examined by the plaintiff's counsel and the said cross examination shall be completed within a period of two months from the date of receipt of a copy of this judgment. The first appellate Court shall thereafter decide the first apppeal on its own merits, based on the evidence already adduced by the parties before the trial Court as well as the additional evidence permitted to be exhibited and cross examination pertaining to the same, the first appellate Court shall decide the first appeal within a period of two months thereafter.

                     9.10. Mr.N.Ganagasapapathy, learned counsel, though relied on the judgments with regard to the lack of readiness and willingness, I find that the only point for consideration is whether the sale agreement is only a security for borrowing made by the defendant or not. Therefore, if a finding is rendered in this regard, it would automatically decide the fate of the parties in the first appeal. Hence, I do not intend to place any reliance on the above decisions, in view of the fact that the defendant is permitted to adduce additional evidence, as indicated herein above. If the first appellate Court comes to the conclusion that the additional evidence points to the fact that the suit sale agreement is also part of the same transaction, which is subject matter of the suit for recovery of money in O.S.No.397 of 2023, then the plaintiff is certainly not entitled to relief of specific performance. On the contrary, if the first appellate Court comes to a conclusion that the suit in O.S.No.397 of 2023, is not in any way related to the suit sale agreement and it is an independent contract for sale of a immovable property, then it is axiomatic that the plaintiff is entitled to a decree of specific performance.

10. Result:

This Second Appeal is allowed and the substantial question of law is answered in favour of the appellant and the matter is remitted to the first appellate Court for enabling the plaintiff to cross-examine the defendant on the additional documents Ex.B2 to Ex.B10. The cross examination shall be completed within a period of four weeks from the date of receipt of a copy of this judgment and the first appellate Court shall thereafter hear the arguments afresh and decide the first appeal on its own merits, within a period of two months thereafter. There shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.