1. [His Lordship, after dealing with a point not material to this report, continued : ] On behalf of the appellants an application is made to us to allow additional evidence to be produced in appeal. It is alleged that certain important evidence was not produced on the advice of their pleader Mr. Lele. On behalf of the respondents a counter affidavit has been filed impugning the genuineness of the documents on which reliance is placed on behalf of the appellants, and setting forth the grounds against the production of additional evidence. Under Order XLI, Rule 27, of the Civil Procedure Code,-
(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 [there is no refusal by the lower Court to admit evidence sought to be adduced now in appeal], or
(b) the appellate Court requires any document 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 to be examined.
2. The only question is whether the alleged negligence of the pleader in not producing the evidence which ought to have been produced in the lower Court amounts to a substantial cause. It has been held that the slackness on the part of the litigants and their legal advisers is not a substantial cause within the meaning of Order XLI, Rule 27, Clause (V). See Wali Muhammad v. Muhammad Bakhs ILR (1924) Lah. 84.
3. We think, therefore, that the application made before us for adducing additional evidence at a late stage does not satisfy the requirements of Order XLI, Rule 27. We, therefore, dismiss the application for the production of additional evidence.
4. I may add that it would not be sufficient for the defendants to prove that Basappa was adopted in another family, but it would be necessary also to prove that Mallappa was not born before the alleged adoption of Basappa, for if Mallappa was born before the alleged adoption, he would remain in his natural family as a member of the joint family of Bhim Naik : see Kalgavda Tavanappa v. Somappa Tamangavda ILR (1909) 33 Bom. 669. 11 Bom. L.R. 797.
5. We, therefore, confirm the decree of the lower Court and dismiss the appeal with costs.
Amberson Marten, Kt., C.J.
6. I concur. The evidence in my opinion is too weak to establish Basappanaik's adoption, nor is it shown that Mallappa was not born at the time of such adoption. The real contention is whether we should direct a remand and admit further evidence as to adoption as claimed in Civil Application No. 152 of 1927. The ground put forward is the alleged wrong advice given to the appellants by their then pleader not to produce certain documents at the trial, because they were useless for the purpose of proving the adoption. This in my judgment is not a ' substantial cause ' within Order XLI, Rule 27, on the facts of the present case. No authority in support of it is cited, and it would open a most undesirable door to opportunities for interminable litigation if this sort of application was entertained. The present litigation is about six years old, and in cross-examination in 1926 defendant No. 1 said: ' We have no evidence in this case except Exhibit 75 to show that Basappanaik was given in adoption.'
7. I would also add that there is no evidence before us by the pleader in question as to whether he in fact did give this advice, and therefore it must not be taken that so far as he is concerned we find that what is stated in this application is true. We merely assume it to be true for the purpose of testing whether the application should be granted.
8. The appeal will be dismissed with costs. Also Civil Application No. 152 of 1927 is dismissed with costs. Stay Application No. 137 of 1927 will be discharged with costs.