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Laxminarayan Deepchand Maheshwari Vs. Bhiku Punjaji Lewa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberLetters Patent Appeal No. 1 of 1969
Judge
Reported in(1974)76BOMLR83; 1973MhLJ489
AppellantLaxminarayan Deepchand Maheshwari
RespondentBhiku Punjaji Lewa
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xli rule 27, order xlii; sections 103, 100, 101-civil procedure code (xiv of 1882), sections 584-587--whether high court in second appeal can admit additional evidence under order xli, rule 27--sufficiency of evidence under section 103, what is.;it is open to the high court in second appeal to admit additional evidence under order xli, rule 27 of the civil procedure code, 1908, if the conditions laid down in that rule are satisfied.;the sufficiency of evidence contemplated by section 103 of the civil procedure code is sufficiency for the purpose of passing or pronouncing a proper judgment. therefore, where the high court comes to the conclusion, that a finding of fact is vitiated and that for the purpose of pronouncing a proper judgment the.....chandurkar, j.1. [his lordship after setting out the facts of the case, proceeded.] two questions are raised by shri mandlekar appearing on behalf of the appellants in this appeal. the first question is that exh. d-29 should not have been permitted to be brought on record and the second question, which is the only substantial question, which has been argued, is that additional evidence could not be admitted in a second appeal since, according to the learned counsel, the provisions of order xli, rule 27, code of civil procedure, are not applicable to second appeals.2. so far as the first contention is concerned, we have already pointed out that exh. d-29 which was the original gat-book was sent for in order to prove one of the documents which was1 allowed to be produced by deshmukh j. as.....
Judgment:

Chandurkar, J.

1. [His Lordship after setting out the facts of the case, proceeded.] Two questions are raised by Shri Mandlekar appearing on behalf of the appellants in this appeal. The first question is that exh. D-29 should not have been permitted to be brought on record and the second question, which is the only substantial question, which has been argued, is that additional evidence could not be admitted in a second appeal since, according to the learned Counsel, the provisions of Order XLI, Rule 27, Code of Civil Procedure, are not applicable to second appeals.

2. So far as the first contention is concerned, we have already pointed out that exh. D-29 which was the original Gat-book was sent for in order to prove one of the documents which was1 allowed to be produced by Deshmukh J. as additional evidence. This was the right hand page of the Gat-book of which only the left hand page was filed on record. This document which was produced with the application as additional evidence was held to be proved, but by agreement of parties the original Gat-book exh, D-29 was permitted to remain on record. It would not, therefore, be correct to say that any document in addition to those which were permitted by Deshmukh J. to be produced, have now been allowed to be filed by the defendants. It was at the request of the parties that exh. D-29 was allowed to be kept on record for the purpose of verifying the correctness of the record made in the right hand page of exh. D-29 which was filed as additional evidence. The certified copy of exh. D-29 is already accepted as exh. 28 and when exhs. 24 and 28 have to be considered together both of them could be looked at the same time from the book exh. 29 of which both these documents are copies. The first contention must, therefore, be rejected.

3. In support of the argument that there is no jurisdiction in a second appeal Court to admit additional evidence, the learned Counsel for the appellants have relied on two decisions, (1) Balvant Yadneshwar v. Srinivas Appaj' AIR[1959] Mys. 244, and (2) Subba Raja v. Narayana Raja. : AIR1954Mad1074 . In the Mysore case a learned Single Judge of that Court has held that provisions of Order XLI, Rule 27, Code of Civil Procedure, do not apply to second appeals and that no document can be allowed to be produced in a second appeal. The learned Judge has based this view on a construction of Section 103 of the Code of Civil Procedure and for that construction has relied on certain authorities cited by him. After referring to these authorities, which we shall discuss later, the learned Judge has held (p. 246):.As above mentioned, the only occasion when in a second appeal the High Court can go into a question of fact is circumscribed by the provisions of Section 103, Civil P.C. One of the conditions for such going into the questions of fact tinder that section is when the evidence on record is sufficient to determine any issue of fact necessary for the disposal of the appeal.

This necessarily implies that even if the evidence on record is insufficient, the High Court cannot allow the evidence to be supplemented for the purpose of going into a question of fact. If so, it follows that the provisions of R. 27 of Order XLI, Civil P.C. cannot apply to second appeals. To allow fresh evidence in second appeals would amount to going into a question of fact even where the evidence on record is insufficient. This would be contrary to the provisions of Section 103, Civil P.C.

Having gone through the several decisions cited by the learned Judge in support of his proposition and having considered at some length the several provisions of the Code of Civil Procedure, we are inclined to take the view that the proposition that under no circumstances additional evidence can be admitted in a second appeal is rather broadly stated by the learned Judge. The Madras decision is also based on the authorities relied upon by the Mysore High Court.

4. Section 100 of the Civil Procedure Code deals with the jurisdiction of the High Court in a second appeal and it is worded as follows:

100. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely:--

(a) the decision being contrary to law or to some usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits.

Sub-section (2) is not material. Section 101 provides that no second appeal shall lie except on the grounds mentioned in Section 100. Now, Section 103 is as follows:

103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower Appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100.

The several rules in Order XLI of the Code of Civil Procedure deal with appeals from original decrees. Rule 27 of Order XLI, as framed by this Court and which was in force when Deshmukh J. passed his order allowing production of additional evidence, is 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 the time when the decree or order under appeal was passed or made, or

(c) 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) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.

Order XLII of the Code of Civil Procedure, which deals with appeals from appellate decrees, has only one rule and that rule provides that the rules of XLI shall apply, as far as may be, to appeals from appellate decrees. Now, Rule 1 of Order XLII, thus makes applicable such provisions of Order XLI as are possible to be applied in the case of appeals from the appellate decrees. The, view which seems to have been taken by the Mysore High Court appears to be that the applicability of the provisions of Order XLI, Rule 27, of the Code of Civil Procedure in a second appeal is ruled out because of the fact that the power of the High Court to decide a question of fact is circumscribed by Section 103. It has, therefore, to be found out whether on a proper construction of provisions of Section 103 of the Code of Civil Procedure it can be said that that provision in any way disables the High Court to decide a question of fact in a second appeal. Section 103 has to be read with Section 100 of the Code of Civil Procedure. Section 100 provides that a second appeal shall lie to the High Court on any of the grounds specified in Clauses (a) to (c) of that section. It is well established that a finding of fact given by the first appellate Court will, in a case where any of the Clauses (a), (b) and (c) is attracted, be vitiated and is liable to be set aside. It is not the law that under no circumstances the High Court sitting in second appeal can interfere with a finding of fact. If the finding of fact is vitiated by an error of law, then that finding will not be binding in second appeal. The grounds on which a finding of fact may be vitiated are limited, no doubt, by the provisions of Section 100 of the Code of Civil Procedure. Now, if a finding of fact is vitiated on a ground which is covered by Section 100 of the Code, the question is what further course the High Court is to follow in a second appeal. Does it have jurisdiction to give a fresh finding in place of a finding which has been vitiated or has it the only alternative to remand the appeal back to the first appellate Court, or in a given ease, to the trial Court to give a finding of fact afresh because the finding of fact given by the lower appellate Court or given by the trial Court and confirmed by the lower appellate Court has been set aside. Now, the provision analogous to Section 103 was not to be found in the Code of Civil Procedure, 1882. Section 584 of that Code was in the same terms as Section 100 and Section 585 was in the same terms as Section 101 of the Code of Civil Procedure, 1908. Section 586 was in the same terms as Section 102 of the 1908 Code except that the amount of the value the subject of the matter was Ks. 500 which was also the figure before Section 102 was amended by Act 66 of 1956. Then the last provision in Chapter 42 of the Code of Civil Procedure, 1882, dealing with appeals from appellate decrees was Section 587 which provided that the provisions contained in Chapter 41 shall apply, as far as may be, to appeals under this Chapter and to execution of decrees passed in such appeals. Under the old Code of 1882 since there was no provision analogous to Section 103 of the Code of Civil Procedure, 1908, a view was taken by several High Courts that though the lower appellate Court had not determined an issue of fact and though there was sufficient evidence on record, the High Court could not itself determine it but could only remand the case for such determination. It was this disability in the High Court to determine an issue of fact which the lower appellate Court had not determined though there was evidence, that had to be got over and Section 103 which was then introduced in the 1908 Act enabled the High Court to determine an issue of fact itself though that issue was not determined by the lower appellate Court. Then came the amendment of 1926 by which in place of 'but not determined by the lower appellate Court' after the words 'disposal of the appeal' the words added were 'which has not been determined by the lower Appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in Sub-section (1) of Section 100.' The obvious purpose of making this amendment in Section 103 was to give jurisdiction to the High Court to decide a question of fact not only in a case where an issue of fact was not determined by the lower appellate Court, but also in those cases where a decision on an issue of fact has gone wrong or was vitiated because of any illegality, omission, error or defect as contemplated by the provisions of Sub-section (1) of Section 100 of the Code of Civil Procedure. Such a jurisdiction was obviously necessary in order to avoid unnecessary litigation because if the High Court did not have jurisdiction to decide a question of fact if the original decision was vitiated by the errors of kind enumerated in Section 100(7), the matter was required to be remanded back to the first appellate Court. This jurisdiction to decide a question of fact in the circumstances referred to in Section 103 can be exercised by the High Court if according to the High Court evidence on record was sufficient, As we read Section 103 we find that it is merely an enabling provision which enables the High in a given case if the evidence on record is sufficient in its view to give a finding on an issue of fact where either that issue has not been determined by the first appellate Court or that has been wrongly decided having regard to the provisions of Section 100(1) of the Code of Civil Procedure. It is difficult to read the provision in Section 102 as placing any restriction on the power of the High Court in the matter of determination of an issue of fact. Section 103 does not lay down by itself as to what the High Court is to do if according to it the evidence on record is not sufficient so as to enable it to decide an issue of fact. Section 103 does not purport to cover that field at all and if in a given case the High Court finds that the evidence on record is not sufficient, then it is open to it to make such orders as may be permissible under other provisions of that Code. No doubt, setting aside a finding of fact and sending the matter back to the first appellate Court is one such alternative, but we fail to see why it must be said to be the only alternative. In a given case, where it is found by the High Court that the evidence on record is not sufficient before it to arrive at a finding of fact properly and a party produced additional evidence in the second appellate Court which enables the Court to clinch the matter at issue or enables it to pronounce a proper judgment, there is nothing in Section 103 which would prevent the High Court from taking on record such evidence. Construing the provisions of O, XLI, Rule 27, it has been held by the Supreme Court in K. Venkataramiah v. Seetharama Reddy : [1964]2SCR35 , that under Rule 27(1) of Order XLI the appellate Court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment', but also for 'any other substantial cause,' and there may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains: obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner, such a case will be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of the Code. The sufficiency of evidence contemplated by Section 103 of the Code is sufficiency for the purpose of passing or pronouncing a proper judgment. If in a given case the High Court comes to the conclusion that a finding of fact is vitiated and that for the purpose of pronouncing a proper judgment the evidence on record is not sufficient and the evidence sought to be made available by a party under Order XLI, Rule 27, of the Code of Civil Procedure, fills up that lacuna so that if that is taken into consideration a proper judgment can be pronounced, we fail to see anything in the provisions of Section 103 which would restrict the powers of the High Court to admit such additional evidence.

5. The construction which is placed on Section 103 by the Mysore High Court is bound, in certain circumstances, to result in manifest injustice and prolonging of litigation. Under Clause (a) of Rule 27(1) of Order XLI an Appellate Court has jurisdiction to allow evidence which a Court from whose decree the appeal is preferred has refused to admit it though the evidence ought to have been admitted. To take an illustration, supposing certain documents which are under law admissible as evidence have been rejected both by the trial Court and the first appellate Court and the High Court is satisfied that the evidence has been wrongly rejected, is the High Court left only with the option of sending the matter back for the limited purpose of admitting those documents and to deny itself the jurisdiction to give a fresh finding after consideration of such evidence which ought to have been rightly admitted? To hold so would obviously be unjust. If the documents were entitled to be admitted there is clear jurisdiction in the High Court under Rule 28 of XLI to take such evidence itself and there is nothing in Section 103 of the Code of Civil Procedure which can be read as depriving the High Court of its jurisdiction to give a finding of fact after considering such evidence which was wrongly left out of consideration.

6. The learned Judge who decided the Mysore case has referred to several decisions. We have carefully gone through those decisions and we find that those decisions do not support the proposition laid down by the learned Judge, The first decision relied upon by the learned Judge is The Secretary of State for India v. Manjeshwar Krishnaya. ILR(1904) 31 Mad. 415. With respect to the learned Judges, the decision, though it is given by a Full Bench, does not give any reasons and in a four-lined judgment it merely refers to two decisions, one of the Bombay High Court and the other of the Madras High Court to which we shall also refer. The order in the Full Bench case is extremely brief and it is worded as follows (p. 416) :

Objection has been taken to the admissibility of fresh evidence in second appeal, and we have been referred to Ramchandra v. Krishnaji ILR(1903) 28 Bom. 4: S.c. Bom. L.R. 615, and Ram Kutti v. Mamad. ILR(1895) 18 Mad. 480. We must uphold the objection and dismiss the petition.

The report does not give any facts nor does it show how the matter arose before the Full Bench. If reference is made to the two decisions relied upon by the Full Bench, we find that those were not cases where the question whether additional evidence could be tendered in second appeal was in fact decided and the Bombay decision turned on the practice then prevailing in the Bombay High Court. In Bamchandra v. Krishnaji a Division Bench of the High Court held that when on coming to the High Court under second appeal it is discovered that there is evidence which ought to have been placed before the lower Courts, the proper practice to pursue is to allow the second appeal to be withdrawn in order that a review petition may be presented to the lower Appellate Court, but in that particular case it was found that this course could not be pursued when the review petition had been already presented to and rejected by the lower Court. The Division Bench really did not go into the question whether Clause (b) of Section 568 of 1882 Code which is identical to Clauses (c) of Order XLI, Rule 27, of 1908 Code, as framed by this Court, applied to a second appeal and the paragraph which we quote below from that judgment shows that a decision of the Bombay High Court in which evidence was in fact admitted in second appeal was cited before the Division Bench. In the second paragraph of the judgment. Jenkins Order J. observed (p. 7) :

Now I am clear that the case does not fall within Section 368, Civil Procedure Code, even if it can be contended that Clause (b) of that section could apply in second appeal. So we have to See whether there is anything else that we can do. We have been referred to a decision of an Appellate Bench of this Court in which evidence no doubt was admitted in second appeal. But the ground on which that course was taken is not sufficiently apparent to allow us to accept that case as a guide to us in this appeal. We think there can be no doubt as to the proper practice to pursue when on coming to this Court on second appeal it is discovered that there is evidence which ought to have been placed before the lower Courts. It is indicated as far back as 1872 in the case of Nanabhai Vallabhdas v. Nathabhai Haribhai (1872) 9 B.H.C.R. 89, where Sir Michael Westrop points out that the practice is to allow the second appeal to be withdrawn in order that a review petition may be presented to the lower Appellate Court. I think it has always been recognized that in that practice the Court has strained its powers to its utmost limits, and I do not think that we would be justified in going beyond that.

It is difficult to treat this decision as an authority for the proposition that under no circumstances the High Court in second appeal can admit additional evidence. It must also be noticed that the Code which was in force when this decision was given by the Division Bench in 1903 was the 1882 Code in which there was no provision which enabled the High Court to decide a question of fact for the first time or to give a fresh finding on a question of fact when that finding was vitiated by an error which could be pointed out within the limited scope of a second appeal. This fact does not seem to have been brought to the notice of the learned Judge of the Mysore High Court.

7. In Raru Kutti v. Mamad, which is the other ease relied upon in Manjeshwar's case, there was no question of adducing additional evidence in a second appeal. The second appeal had already been decided and a review of the judgment in second appeal was1 sought on the ground of discovery of new and important evidence and the Division Bench held, referring to the practice of allowing a second appeal to be withdrawn and a review application to be presented before the first Appellate Court, as follows (p. 481) :

But in this case the second appeal has been heard and decided, and we can no longer permit the appeal to be withdrawn. Nor could we in second appeal admit evidence of fact which was not before the Lower Appellate Court, whether it would be still open to the petitioner now to move the Lower Appellate Court to admit the new evidence is not a point which it is necessary for us here to decide.

This decision again was under the Code of 1882 and, like the decision of the Bombay High Court in Eamcliandra's case, it cannot be taken as a guide for construing the provisions of Section 103 of the Code of Civil Procedure, 1908.

8. The Mysore High Court then referred to a decision of the Lahore High Court in Wali Muhammad v. Md. Bakhsh AIR[1924] Lah. 444. A bare reading of the judgment will show that the question whether Order XLI, Rule 27, Code of Civil Procedure, authorises the appellate Court to allow production of additional evidence in second appeal was not at all decided by the Lahore High Court. When this contention was raised by Mr. Tek Chand before the Division Bench of the Lahore High Court and the counsel for the appellants pointed out to a decision of the Privy Council in Indrajit v. Omar Singh : (1923)25BOMLR1259 , the Division Bench held that the High Court of Patna, against whose decision the appeal had gone to the Privy Council, was sitting as a Court of First Appeal and the authority was not in point. The question which was posed by the counsel for the respondents in that case regarding construction of Order XLI, Rule 27, was, therefore, not at all decided. In the Calcutta case in Shamsuddin v. Molannessa Bibi AIR[1926] Cal. 941, also it is not possible to find a proposition of law being laid down that a High Court sitting in second appeal has no jurisdiction to admit additional evidence. The Division Bench seems to have decided on facts in that case that they did not require any documents to be produced for enabling them to pronounce a judgment of a question of fact. Ghose J. in his judgment, with which Coming J. agreed, observed (p. 943) :.It seems to me very difficult to bring this application within the provision of Rule 27, Order 41, Civil P.C., because in the first instance it does not come within Clauses (a) of Sub-rule 1, nor does it come within the Clauses (b). As we sitting here cannot be said to require any document to be produced or any witness to be examined to enable us to pronounce judgment on a question of fact or for any other substantial cause to enable us to pronounce judgment on a question of fact, if we are to accept this document we should have to reverse the finding of fact arrived at by the Court of appeal below and to send back the case for re-trial after taking into consideration the evidence which we allow to be produced in this Court. But we can set aside a judgment in second appeal only on the ground set forth in Section 100 of the Civil P.C. The findings of fact which had been arrived at by the lower appellate Court are not tainted by any of the defects mentioned in Section 100 in which case only we can. interfere in second appeal. It seems to me that we are, therefore, not in a position to accept fresh evidence in second appeal with regard to a question of fact under the circumstances mentioned by the appellant.

(Italics are ours)

These are the only relevant observations and it is difficult to read these observations as construing1 Section 103 as laying down any limitation on the power of the High Court in second appeal to admit additional evidence or ruling out the applicability of Order XLI, Rule 27, Civil Procedure Code to a second appeal.

9. Another decision which was relied upon by the learned Judge is of the Allahabad High Court in Rang Lai v. Lilawati : AIR1929All375 . On reading this judgment it appears to us that it has been misread by the learned Judge when the learned Judge relied on this decision for the proposition that Order XLI, Rule 27, does not apply to second appeals. The observations made in the second paragraph of the judgment show that the view taken by the learned Judge was to the contrary. Referring to Order XLII, the learned Judge has observed (p. 375) :.But Order 42 declares that the rules of Order 41 shall apply so far as may be to second appeals. There is, therefore, in my opinion, no reason for holding that the additional evidence could not be accepted by this Court.

These observations clearly indicate that the learned Judge has positively expressed an opinion that by virtue of Order XLII the rules of Order XLI of the Code of Civil Procedure apply to second appeals and additional evidence could be accepted by the High Court in second appeal. This judgment, therefore, does not support the view of the learned Judge of the Mysore High Court.

10. It will thus appear that the several decisions on which reliance was placed by the learned Judge of the Mysore High Court do not support the view taken by him in Balvant's case.

11. The other decision on which reliance is placed on behalf of the appellants is the decision of the Madras High Court in Subba Raja v. Narayana Raja. In that decision the learned Judge has no doubt held that additional evidence in second appeal to ascertain a question of fact cannot be admitted. It may, however, be pointed out that the view taken by the learned Single Judge in that case is patently contrary to an earlier Division Bench decision of the same Court in Paramasivudu v. Subhanna. AIR[1919] Mad. 17. In this case the Division Bench held as follows (p. 18):.We see no objection, on grounds of principle or convenience, to the admission in second appeal of a document such as this Court's judgment which could not have been produced earlier because it was not in existence, and which requires no further evidence to explain it.... The conclusion must be that no general rule as to the party's right to have newly discovered evidence taken in Second appeal can be laid down, but that each claim must be dealt with on its merits with reference to the existence of the sufficient cause referred to in Order 41, Rule 27, and that such cause has been shown in the present case.

This Division Bench decision is direct authority on the point that under Order XLI, Rule 27 of the Code of Civil Procedure additional evidence can be accepted by the High Court in second appeal. This decision has not been even referred to by the learned Single Judge who decided Subha Raja's case. The decision in Subba Raja's case is also based on the same authorities which are relied upon by the Mysore High Court, that is to say, The Secretary of State for India v. Manjeshwar Krishnaya, Bamchandra v. Krishnaji, Raru Kutti v. Mamad, Shamsuddin v. Molannessa Bibi, Bang Lal v. Lilcmmti and Wali Muhammad v. Md. Bakhsh. 'We have already pointed out while discussing the Mysore case how these authorities do not support the proposition that under no circumstances additional evidence can be permitted to be tendered in a second appeal. 'We are, therefore, not inclined to follow the view taken by the Mysore High Court in Balvant Yadneshwar v. Srinivas Appaji and by the Madras High Court in Subba Raja v. Narayana Baja.

12. The view which we have taken that it is open to the High Court in second appeal to admit additional evidence under Order XLI, Rule 27, Code of Civil Procedure, if the conditions laid down in that rule are satisfied is supported by the decisions of the High Courts of Andhra Pradesh, Assam, Gujarat and the Madras decision to which we have already made a reference. In Venku Beddi v. pichi Reddi AIR[1956] Ap 250, the Andhra Pradesh High Court has held that there is nothing either in Section 103 or in Order XLI, Rule 27, Civil Procedure Code, which excludes the applicability of the latter provision to second appeals and that the terms of Rule 27 are general in application and in an appropriate case it is open to the High Court in second appeal to admit additional evidence. The learned Judge, who decided that case, dissented from the decision in Subla Baja v. Narayana Baja. In Braja Behari v. Chitita Banjan [1958] A.& N. 19 a Division Bench of that Court, after referring to the decision of the Supreme Court in K. Venkataramiah v. Seetharama Beddy, held that the High Court would be justified in allowing additional evidence to be adduced in second appeal before it and accordingly accepted certain documents filed before it as additional evidence. In S.B. Kapadia v. N.B. Kapadia AIR[1967] Guj. it was held that while it was true that the High Court was not expected to go into pure questions of fact, unless they fall under Section 100 of the Code of Civil Procedure, additional evidence can be admitted either for enabling the Court to pronounce judgment or for any other substantial cause, under Order XLI, Rule 27 of the Code of Civil Procedure, and by reason of Order XLII of the Code of Civil Procedure, the provisions contained in Order XLI are made applicable, so far as may be, to appeals from appellate decrees. 'With reference to facts of that case the Gujarat High Court observed that while it is open to the Court to allow additional evidence under Order XLI, Rule 27(1)(b) in the circumstances set out in that ease there hardly appeared any justification for that Court to allow any such additional evidence at such a late stage and that too for the purpose of filling in, as it were, the lacuna by the production of such evidence in support of the plaintiff's claim about his ownership of the wall in question.

13. On a review of these authorities and on a construction of provisions of Section 103 and OO. XLI and XLII of the Code of Civil Procedure we must come to the conclusion that there is no absolute bar to receiving additional evidence by the High Court in second appeal.

14. The learned Judge who originally granted the applications filed by the defendants had positively come to the conclusion after he had been taken through the entire record that the documents which were sought to be produced would be of assistance to him for pronouncing a proper judgment. It cannot, therefore, be said that those documents which were also ultimately considered by the learned Judge who finally decided the appeal were wrongly admitted in evidence.

15. It was faintly contended that the High Court had exceeded its jurisdiction in setting aside a finding of fact given by the lower Appellate Court. The learned Single Judge who decided the second appeal had found that the Assistant Judge who decided the first appeal had wrongly placed burden on the defendants to prove the possession on the plaintiffs. That was sufficient to vitiate the finding with regard to possession. Another error which was apparent in the judgment of the Assistant Judge was his view that the Deputy Commissioner had no jurisdiction to make an order of correction of the revenue records as was done by him. This view was patently contrary to the provisions of Section 102 of the Berar Land Revenue Code which was then in force. Exhibit D-l showed that the Record of Rights disclosed that survey number 130 was subdivided only into two survey numbers, that is, survey number 130/1, area 3 acres 37 gunthas, and survey number 130/2, area 3 gunthas, while physical facts of possession showed that it was sub-divided into six survey numbers, i.e. survey numbers 130/1 to 130/6, and that 3 acres 37 gunthas were not in possession of Deepchand. It was after an enquiry was made in which Deepchand was noticed that it was found that Record of Rights did not correctly disclose the factual possession. The Tahsildar had, therefore, recommended a correction of the Record of Rights and that order was passed by the Deputy Commissioner on August 18, 1955 under Section 102 of the Berar Land Revenue Code. The records were accordingly corrected and there is a presumption of correctness attached to the Record of Rights under Section 110(6) of the Berar Land Revenue Code. The learned Assistant Judge had clearly ignored these provisions and he had failed to take into consideration the legal effect of the order of the Collector dated August 18, 1955 in Revenue Case No. 15/XXI/1954-55 which clearly showed that the defendants were in possession for a long period. These errors were, in our view, sufficient to vitiate the finding given by the learned Assistant Judge and the learned Single Judge was, therefore, justified in arriving at a fresh finding on issue of possession after taking into account the additional evidence which was rightly admitted in evidence.

16. Having regard to the view which we have taken, this appeal must fail and is dismissed with costs.


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