1. This is plaintiff's appeal from the decree of the Court of Additional District Judge, Sagar, dismissing civil suit No. 13-A of 1947 for possession.
2. The appellants are the trustees of Digambar Jain Mahila Ashram, Sagar. The suit was for possession of a house situate in Katra Bazar, Sagar, and gold ornaments worth Rs. 13,282/8/-, which belonged to Kanchhedilal who died on 17th November, 1945. Rewaram, who died during the pendency of the suit, was the separated brother of Kanchhadilal. He transferred the property in dispute to the Digambar Jain Mahila Ashram by a registered deed of trust, dated 12th January, 1946, claiming to have inherited it from his deceased brother. The suit was based on the deed of trust executed by him.
3. The suit was originally instituted against Manbai. On her death, during the pendency of the suit, her minor son Rajkumar and his certificated guardian Chhotelal were brought on record as her legal representatives. Their defence was that Rajkumar was the legitimate son of Kanchhedialal through Manbai. She was a benekiva and was married to Munnalal in the year 1936. He, however,abandoned her and severed Ms marital ties. She then married Kanchhedilal in October 1940.
It was alleged that her divorce and remarriage were valid under the custom of the caste. In this view, Rajkumar claimed the entire property as the next heir of Kanchhedilal. The appellants in reply denied these averments and alleged that Rajkumar was begotten by Munnalal and not by Kanchhedialal. In this view, they set up a case of lawful inheritance by Rewaram to the exclusion of Rajkumar. The defence, however, prevailed with the lower Court.
4. The appellants made an application to this Court on 4th August, 1950 for leave to produce Certain documents, connected with a case under Section 488, Criminal Procedure Code. It was urged that the existence of these documents came to be known by the appellants in April 1950, when they made a search of the record of the case and obtained copies of the relevant documents. It appears from these documents that Manbai had laid a claim or maintenance against Munnalal in the year 1941, which was allowed by the Court on 23rd April, 1941. It was urged that these documents negative the contention of the defendants (1) of a divorce of Manbai by Munnalal and (2) of a lawful marriage between Manbai and Kanchhedilal.
5. The question of admission of additional evidence in appeal is governed by Order 41, Rule 27 of the Code of Civil Procedure. This rule was amended by this. Court on 21st March, 1952 by adding a new clause, but that is not relevant as it cannot be applied retrospectively to this case in which the application for admission of additional evidence was made long before its enactment, See Madan Mohan Sansthan v. Munnibai, 1956 Nag. LJ 610: (AIR 1957 Nag 15). The case has, therefore, to be decided under the original provision.
6. The relevant part of Order 41, Rule 27 is Clause (b) of Sub-rule (1), which is reproduced below:
'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--* * * * *(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce a judgment, or for any other substantial cause.
the appellate Court may allow such evidence or document to be produced, or witness to be examined.'
The scope of this provision was recently the subject of decision by the Supreme Court in Arjan Singh v. Kartar Singh, AIR 1951 SC 193, in which the principles laid down by their Lordships of the Privy Council in Kessowji Issur v. GIP Rly. 34 Ind App. 115 and Parsotim v. Lal Mohar, 58 Ind. App., 254: (AIR 1931 PC 143) have been affirmed. These principles are (i) that the discretion given to the Appeal Court to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in the rule, (ii) that the legitimate occasion for the application of the rule is when, on examining the evidence as it stands some inherent lacuna or defect becomes apparent, not where a discovery is made, Outside the Court, of fresh evidence and the application is made to import it and (iii) that the true test is whether the Appellate Court is able to pronounce judgment on the material before it without taking into consideration the additional evidence sought to be adduced.
In none of these cases, however, was there any question of the interpretation of the expression 'any other substantial cause.' It is true that theneed to admit additional evidence on this ground, as well must be that of the Court. It is also true, as held by this Court in 1956 Nag LJ 610: (AIR1957 Nag 15} (supra) relying on Young v. Kershaw (1899), 81 LT 531 that a fresh trial can only be granted if the evidence sought to be produced is conclusive in character and free from suspicion. But if, these conditions arc fulfilled, the Court shall evidently be free to admit additional evidence in the interest of the 'just disposal of the lis.
7. The decision of the Judicial Committee in the case of Kessowji Issur 34 Ind App 115 (PC) was explained by their Lordships of the Madras High Court in ILR 38 Mad 414: (AIR 1916 Mad 816) in which it was observed that the true test laid down in Clause (b) of Order 41, Rule 27, is not whether any tribunal would be unable to pronounce any judgment without production of the additional evidence but whether the mind of the Appellate Judge is in such a condition on the evidence on the record that he requires any additional documents to be examined to enable him to pronounce judgment.
Regarding the expression 'any other substantial cause,' it was held that it confers a wide discretion on the Appellate Court to admit additional evidence when the ends of justice require it to he done. The same observations apply to the case of Parsotim, 58 Ind. App. 254: (AIR 1931 PC 143), in which the Judicial Committee merely followed their earlier decision in the case of Kessowji Issur 34 Ind App. 115 (PC). We are in respectful agreement with the observations of their Lordships of the Madras High Court, as they tend to serve the ends of justice, for which alone the Courts of law are constituted.
8. We find in the instant case that the evidence on both the sides is of a dogmatic nature, which if acted either way, is likely to lead to injustice without the aid of documents which are decisive in character and are above reproach. Feeling this need, we admit, the documents in question, with liberty to the respondents to rebut the evidence that the appellants might lead bearing on these documents. The case shall go back to the trial Court for examining additional witnesses, in the light of these remarks. The record shall be submitted to (his Court within a period of 3-1/2 months. The appeal shall, therefore be heard again.