J.K. Misra, J.
1. The plaintiff in the suit is the petitioner here. Defendants 1 and 6 are two brothers. The plaintiff-petitioner purchased the western half of the suit plots from defendant No. 6 on 10-8-51. Prior to that, defendants 2 to 5 had purchased the whole of the suit plots from defendant No. 1 purporting to have made the sale as the Karta of the family of defendants 1 and 6, on 10-4-51. Defendants 7 and 8 are the lessees of the plaintiff.
The plaintiffs suit was one for recovery of possession, or in the alternative for partition. One of the main issues was whether there had been partition between defendants 1 and 6 prior to the two sales--The trial court passed a decree for recovery of possession in favour of the plaintiff, holding that there had been mutual partition between defendants 1 and 6, or their family properties. The two appeals were filed against this decree--one by defendant No. 1 and the other by defendants 2 to 5, and both the appeals were heard analogously.
Defendant No. 1 as an appellant, filed a certified copy of the deposition of defendant No. 6 in a previous small cause suit No. 56 of 1952 in the Court of the Munsif, Aska, and prayed the appellate court to treat that as additional evidence. The said small cause suit was one, in which defendant No. 6 was the plaintiff, a debtor was the main defendants and defendant No. 1 was a proforma defendant.
In that suit in course of the cross-examination, defendant No. 6 had stated in the year 1952, 'Our lands have not been partitioned as yet.' It is this statement which was sought to be put in as additional evidence in the appellate Court. Without hearing the appeals on their own merits, the appellate Court recorded the following order on the said additional evidence sought to be adduced and remanded the case for retrial, and against the said order of remand and receipt of additional evidence, the present petition in revision has been moved.
2. The relevant portion of the appellate order is as follows:
'This piece of evidence which is material for the determination of the case was not produced before the trial court and the learned Advocate for the appellant has prayed that this document may be taken as an additional evidence. I find no reason to reject his prayer and the document is accepted as an additional evidence. Both the lawyers for the appellant and respondents have conceded that the case may be remanded to the trial court for considering the additional evidence and giving a finding about the petition (partition ?) between two brothers Ananda and Adikanda Upadhya. The judgment and decree of the learned trial court are set aside and the suit is remanded for retrial. The suit will be readmitted in its original number in the register and the evidence recorded 'in the original trial shall subject to all exception, be evidence during the trial after remand. The parties are at liberty to adduce evidence about the partition. As all the issues are inter-connected with the facts of partition all the issues will be decided again.'
3. Order 41, Rule 27, C. P, C. deals with the question of taking additional evidence at the appellate stage. Sub-section (2) of the said rule provides, 'Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission.' The learned appellate Court, without recording any reason in the present case as to why additional evidence was allowed to be produced, only said that he found no reason to reject the prayer for the same.
This was clearly against the provision of the rule. However, it has been held in several cases including Iswar Chandra v. Jogendra Lal, AIR 4927 Cal 126 and Biradhmal v. Prabhabati Kunwar, AIR 1939 PC 152 that the omission to state the reason does not amount to an illegality, but it is material irregularity. Since the appellate Court has recorded no reasons, one has to seek the reasons from the petition filed by defendant No. 1 as appellant,
In that petition, he has stated that though he had procured the certified copy of the deposition previously, it was mislaid somewhere while the suit was in progress, and so he could not file the same in the trial court. Order 41, Rule 27(1) C.P.C. according to Patna amendment, consists of three clause;)--Clauses (a) and (b) dealing with the right of the party in adducing additional evidence and Clause (c) dealing with cases where the court requires any particular evidence to be given, to enable it to pronounce the judgment.
A party has the right to adduce additional evidence if the trial court has wrongly refused to accept any evidence or if a particular evidence was not within the knowledge or reach of the party, irrespective of due diligence. In the present case, it is not the party's contention that the document in question had been rejected by the trial Court, or that it was not within his knowledge. All that he said was that it was mislaid and so he could not get it before the trial. If the appellant (defendant No. 1) could not get the certified copy of the deposition, which is stated to have been mislaid, he could have procured another certified copy and filed it in tile trial stage, or he could have explained as to why he was not in a position to secure any such fresh certified copy.
So, the case of the appellant for adducing additional evidence, could not be covered either by Clause (a) or Clause (b) of Sub-section (1) of Order 41, Rule 27, C.P.C. As to Clause (c), no doubt, it was competent for the court, after going through the whole case, to say that the document in question was necessary to enable the Court to pronounce the judgment. But before hearing the case on merit, the court could not be in a position to decide whether such a document was necessary or not, and as a matter of fact, the Court did not consider the document in question from that angle. It has been laid down in Persotim Thakur v. Lal Mohar Thakur, AIR 1931 PC 143.
'Under Rule 27 it is only where the appellate Court 'requires' it (i.e. finds if needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.' It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect but the requirement must be the requirement of the Court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing.'
This view has been followed by the Supreme Court in Arjan Singh v. Kartar Singh, AIR 1951 SC 193. As I have said, none of the three Clauses (a), (b) and (c) of Order 41, Rule 27 (1) C.P.C. can be applicable to the present case, in which the appellate Court has admitted the document in question as additional evidence--no circumstances established to warrant the application of clauses (a) and (b) and the position being premature in respect of application of Clause (c). So, the order of the appellate Court in accepting the additional evidence is a wrong order which has to be corrected.
4. The next point in the case is the order of remand passed by the appellate Court. As appears from the order of the Court, the lawyers for both parties conceded that the case be remanded. It is unnecessary for me to discuss here whether this concession by the lawyers could be binding On the parties, or since an error of law has been committed, such concession has no binding force. It is sufficient to state that the Order of remand was founded on acceptance of the document in question as additional evidence, and no other consideration. Since that document has been wrongly admitted as additional evidence, there is no ground for an order of remand and there could be no occasion for making such an order of remand giving further opportunities to the parties to adduce evidence.
5. In the result, the order of the appellate Court accepting the document in question as additional evidence and the consequential remand of the case to the trial Court are set aside, and it is directed that the appellate Court shall proceed to hear the appeals on merit. The petition in revision is accordingly allowed.
Parties are to bear their own costs of this petition.