1. This is a defendant's second appeal from the decree of the lower appellate Court granting a decree for ejectment against the appellant. The undisputed facts are these: Under a rent note Exhibit P-1, dated 21-11-1949 the appellant took on lease certain property belonging to the respondent. This lease was for the period beginning from 22-10-49 and ending on 22-10-1950. The property consisted of an open site on which a house was actually standing at the date of the aforesaid lease. It is situate in the town of Ghatanji to which the Rent Control Order of 1949 applied. At the end of the period of lease the respondent served a notice upon the appellant terminating the lease but before serving that notice he did not obtain the permission of the Rent Controller. The appellant did not vacate the site and the house and therefore the respondent instituted a suit for ejectment. In that suit he claimed ejectment of the appellant only from the site and said that the super-structure standing thereon did not belong to him but to the appellant and that the latter should be asked to remove the superstructure while vacating the site.
2. The appellant contended that he was not a lessee merely of the site but was also a lessee of the house standing on that site and that consequently it was obligatory upon the respondent to obtain the permission of the Rent Controller to terminate the lease. The appellant's objection prevailed in the trial Court which dismissed the suit but was negatived by the lower appellate Court.
3. Shri Tare who appears for the appellant points out that the lower appellate Court granted as application made by the respondent for admitting on record five documents which are said to be rent notes in respect of the same property for previous years. As the appellant was ex parte in the lower appellate Court no objection to their admission could be taken by him Shri Tara's contention is that in admitting these documents to lower appellate Court has completely transgressed the provisions of Order, 41, Rule 27 of the Code of Civil Procedure.
4. Now, the law governing admission of additional evidence in appeal has been expounded by their Lordships in a number of cases. In this connection I would first refer to the decision of their Lordships in Kessowji Issur v. G.I.P. Rly. Co. 34 Ind App 115 (PC) which may well be regarded as the leading case on the point. In that case, their Lordships have laid down that the power of the appellate Court to admit additional evidence is strictly limited and that before exercising that power it must be satisfied that one of the two conditions set out in Order 41, Rule 27 is satisfied. Those conditions are:
(a) that the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) that 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.
5. It is not disputed that the documents in question were not tendered by the respondent before the trial Court, and were consequently not refused to be admitted in evidence by that Court. The question is whether it can be said that in this case the requirement was of the appellate Court. While dealing with this aspect of the matter their Lordships have laid down in anther case, Parsotim Thakur v. Lal Mohar Thakur , that it is only when the Court itself requires additional evidence that is to say, finds it needful in order to pronounce judgment or for any other substantial cause, that such evidence be admitted, that additional evidence can be admitted in appeal. The same view has been expressed by their Lordships of the Privy Council in another case reported in the same volume Manmohan Das v. Mt. Ramdei . I have perused the order sheets of the lower appellate Court and I do not find any thing therein which would show that the lower appellate Court found that there was some lacuna in the case fore removing which it considered it necessary to admit additional evidence on record. Nor do I find anything on the record to show that the lower appellate Court found it impossible to decide any point in controversy between the parties solely on the basis of the material before it and that it therefore wanted some additional evidence on that point.
6. The appeal was preferred by the respondent on 14-12-1951. On 18-4-1952 an application was made by him for admitting the documents already referred to. This application was taken up for consideration on 15-12-1952 when apparently arguments were heard by the learned Judge of the lower appellate Court. In the order sheet of that date the learned Judge has observed:
'I consider necessary for finally deciding this appeal to admit the 4 (sic) documents for admission of which an application has been made. They are admitted. The appellant examined himself to prove them.'
The above quotation will show that the learned appellate Judge merely thought that the admission of these documents was necessary for finally deciding the case and that he as not of the view that the matter in controversy cannot be decided with out the admission of additional documents. As pointed out by their Lordships in Parsotim Thakur's case (cit sup) whenever the appellate Court allows additional evidence to be adduced, it must record its reasons for so doing. Merely saying that it thought it necessary to admit the documents is not enough. Raja manner J., as he then was has laid down in Kovakutty v. Kunhali AIR 1946 Mad 203 that where an appellate Court summons an additional witness without giving any reason or without specifying the points to which the evidence is to be confined as required by Order 41, Rules 27 and 29 but merely states in its judgments that additional evidence was necessary to enable it to come to a conclusion regarding the matter on controversy, the reasons given in the judgment cannot amount to a fulfilment of the conditions imposed on the Court by Order 41, Rule 27(c) and such evidence must be discarded. I respectfully agree with the learned Judge that a bare use of the word necessary' does not fulfil the requirements of law. It has to be borne in mind as pointed out by their Lordships in the two Privy Council cases referred to above that whenever the appellant Court allows additional evidence to be adduced it must record its reasons for so doing and must further specify the points to which the evidence is to be confined. When their Lordships say that reasons must be recorded that requirement can hardly be said to have been fulfilled by making a bland statement to the effect that the appellate Court thinks it necessary to admit additional evidence. Something more than that is required. It must appeal that the appellate Judge has heard all the arguments and has applied his mind to the case and found himself in a real difficulty about deciding the matter in controversy solely on the basis of the material already on record. In Manmohan Das's case (cit sup) the High Court had examined one Mr. Dube as a witness but according to it ought to have been produced as a witness for the defence. The only ground on which the High Court allowed the evidence of Mr. Dube to be tendered was that in its opinion it was desirable to examine him as a witness. Dealing with this mater their Lordships observed:
'.....there is no record of the reason for the admission of his (Dube's) evidence other than passage just quoted from the judgment of the High Court no is there any specification of the points to which his evidence was to be confined or any record in the proceedings of the points so specified. Moreover, Mr. Dube appears to have been called as a witness at the outset of the hearing in the High Court and not after the Court had satisfied itself on examining the evidence taken below that there were matters on which his evidence was essential to enable them to do justice between the parties.'
7. Now, it does not appear either from the judgment of the lower appellate Court or from the order sheets in the case that it was after the examination of the entire evidence already tendered in the trail Court that the lower appellate Court found it necessary to alow additional evidence to be admitted. Indeed the inference must be other wise because the appellate Court has not, as required by Order 41, Rule 29 of the Code, specified the point to which the additional evidence was to be confined. Had it done so then, there would have been some material for saying that the learned Judge had applied his mind to the evidence on record and was thus in position to formulate his own requirement. As in Manmohan's case so in this, the learned appellate Judge seems to have completely disregarded the requirements of Order 41, Rule 27 and Rule 29 so carefully framed to ensure that such an exceptional procedure provided in Rule 27 will be resorted to only in special circumstances and with adequate safeguard. In these circumstances, I hold that the lower appellate Court was in error in admitting the additional evidence on record.
8. I may further point out that this is not a case where evidence was not available to the respondent at an earlier stage. Indeed, it is clear from the statement contained in the application for admission for additional evidence that the evidence consisted of five documents which had been in the possession of the respondent at the trial. The reason given for not tendering the documents in the trial Court was that the respondent expected the appellant to go into the witness box & wanted to confront him with those documents during his cross-examination and that since the appellant did not go into the witness box the respondent could not tender them in evidence in the trial Court. This is hardly any reason for not tendering the documents at the proper stage. The respondent took a risk by not tendering the documents in evidence at proper stage and he must now take the consequences. The result of this must necessarily be that the evidence so tendered should be discarded.
9. The question then is whether upon the evidence that remains on record, i.e. the evidence which was tendered before the trial Court,: the conclusion arrived at by the lower appellate Court could properly be arrived at. I do not think that it will be right for me to consider the evidence myself. But on the other hand, I think it fit to leave it for consideration of the lower appellate Court, because that is the Court of fact.
10. Upon this view, I set aside the judgment and decree of the lower appellate Court and remand the appal to it for a decision upon the basis of the evidence which was tendered in the trial Court.
11. Costs of this appeal will be borne by the respondents. Other costs will abide the event.
12. A certificate of refund of court-fee shall issue.
13. Appeal remanded.