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Surrinder Kumar Goyal Vs. B.N. Javeri - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 40 of 1973 and Civil Miscellaneous Appeal No. 1923 of 1977
Judge
Reported inILR1979Delhi579
ActsCode of Civil Procedure (CPC), 1908 - Order 41, Rule 27; Delhi Rent Control Act, 1958 - Sections 39
AppellantSurrinder Kumar Goyal
RespondentB.N. Javeri
Advocates: J.C. Jain and; F.C. Bedi, Advs
Cases ReferredKesar Das v. Bakshi Ram and
Excerpt:
.....of the subsequent events alleged, provided they are proved. - - nor would the discovery of new evidence subsequently to the making of the decree of the district court be any ground of special appeal, although it might be good ground for an application to the district court for a review of its decree, provided no special appeal shall have been admitted by the high court. those exceptional situations must be discerned from other rules of law, for the judgment of the full bench contains no more discussion than the passage which i have quoted. srinivas appaji kulkarni, air 1959 mys 244. (13) on the other hand, there are many cases which clearly hold that order 41 rule 27 does apply to a second appeal :for example sumanlal bhagwandas kapadia v. suppose the court of first instance has..........any of the findings on questions of fact by the district court. nor would the discovery of new evidence subsequently to the making of the decree of the district court be any ground of special appeal, although it might be good ground for an application to the district court for a review of its decree, provided no special appeal shall have been admitted by the high court.'(11) it is to be observed that here the application was for review of judgment, which is a very different thing to an application for producing additional evidence in appeal. the grounds for those two kinds of applications are not the same, and they are governed by different rules. this could furnish a reason for distinguishing the case. however, it does yield the ratio that in ah appeal maintainable only on question^.....
Judgment:

T.P.S. Chawla, J.

(1) In this appeal under section 39 of the Delhi Rent Control Act 1958, the appellant has moved an application seeking leave to produce further evidence. The application is made 'under Order 41 rule 27 read with section 151 of the Code of Civil Procedure' and prays for the case to be remitted to the Additional Rent Controller for recording additional evidence. However, in the course of the argument, counsel for the appellant merely wanted that some developments which have occurred after the matter was tried at first instance be taken into consideration whilst deciding the appeal. There is no doubt that this will entail taking notice of facts which have neither been admitted nor proved on record. thereforee, counsel for the respondent contended that, since this was a second appeal which could be entertained only on 'some substantial question of law', the application could not be allowed even in the modified form in which it was argued. So, the question which I have to decide is, whether in a second appeal, maintainable solely on questions of law the court has power to take notice or admit evidence of facts which have arisen after the case was originally tried.

(2) A few relevant facts will help to bring out the question in full relief. In 1949 the perpetual leasehold rights in respect of the plot of land at 108, Sunder Nagar, New Delhi, were purchased jointly by the appellant, Surender Kumar Goel, and his mother. The lease was executed much later and was registered on 17th October 1956. In the meantime, between 1951 and 1953, a double-storeyed house had been constructed on this plot comprising a self-contained flat on each floor. The cost of the building was jointly subscribed by the father and the mother of the appellant. Thus, the parents became co-owners of the structure. On 1st March 1957, they jointly executed a registered deed gifting the first floor of the house to the appellant.

(3) The father of the appellant was employed as a Superintending Engineer in the Military Engineers Services. Till 1961 he was posted in Delhi and resided with his family, including the appellant, in the ground floor of the house. Then, he was transferred to Lucknow, to which place he removed with his wife. The appellant got married in 1961 and remained behind in Delhi.

(4) On 17th February 1963 the mother of the appellant made a will bequeathing all her property to him. A week later, on 24th February 1963, she added a codicil and gave to her husband, for the duration of his life, the right to reside in the ground floor of the house 'after his retirement from service'. On 10th March 1963, the mother died. Soon afterwards, the appellant and his wife moved to Lucknow to .give company to the widowed father.

(5) In September 1962, the first floor of the house was let to the respondent B. N. Javeri, for use as a residence. By a letter dated 3rd June 1964, the appellant gave one year's advance notice terminating the lease. He said that he wished to come to Delhi to start a business and would need the first floor for his own residence. In his reply, dated 9th June 1964, the respondent said that he would 'certainly' give 'vacant possession on or before 31st May 1965'. However, when the time came, that was not done. Consequently, on 12th May 1966, the appellant filed an application seeking an order for recovery of possession. He pleaded that he wan,ted to 'shift' to Delhi and required the first floor for his own occupation and for the occupation of the members of his family dependent on him' and had 'no other accommodation at Delhi.

(6) Whilst that application was pending, the ground floor fell vacant in October 1966. It was leased out again within a month. From this the Additional Rent Controller concluded that 'other reasonably suitable residential accommodation' had become available to the appellant, and the fact that it had not been utilised raised doubts about the bona fides of the appellant. On this ground the Additional Rent Controller dismissed the application by an order made on 11th April 1969. All the other points in dispute were decided in favor of the appellant. The appeal to the Rent Control Tribunal was dismissed on 4th November 1972 on the same ground.

(7) Now, counsel for the appellant urges that the following subsequent events should be taken into consideration at the hearing of the present appeal; and, if they be disputed, evidence may be recorded to ascertain the same. First, he wishes it to be noted that the father of the appellant retired from service in 1968. This fact was not brought on record earlier as the Appellant closed his evidence in August 1967 Second, that since 1968, the appellant and his family have been residing in a rented house at Meerut. Third, that after the retirement of the father, the ground floor of the house in Sunder Nagar became vacant for the first time on 12th June 1973. Fourth, that on the very next day, 13th June 1973 the father occupied the ground floor and has continued to live there ever since. Fifth, that the father, who is now 68 years old, is almost blind and is suffering from arthrIT is and Parkinson's disease which are indirable. He, thereforee, needs a close relation nearby to attend on him. Sixth, that whereas in 1967 the appellant had only two children, he now has five. Of course the respondent docs not admit any of these matters and if they are to be taken into account, evidence will have to be recorded.

(8) It seems clear to me that these subsequent events would be relevant for determining whether the first floor is 'required bona fide by the appellant. They would post the court with the changes in the position up to date. But counsel for the respondent says that this court is powerless to take cognizance of any new facts as the statute restricts the jurisdiction exercisable in a second appeal to 'some substantial question of law'. There are, indeed, a few recent cases which support this submission. I think, I should indicate straightaway the fallacy which I observe in them.

(9) Those cases rely on some older ones in which the view was taken that, in a second appeal, additional evidence to prove any fact could not be allowed under Order 41 rule 27 of the Code of Civil Procedure as the appeal was confined to questions of law. This view is then extended to exclude evidence of subsequent events. With respect, in my opinion, both the original proposition and its extension are wrong. In any case, as I will presently try to show. so far as subsequent events are concerned, the relevant provision is rule 33 of Order 41 and not rule 27. Having broadly stated my points of difference, I will now refer to the cases.

(10) The basic authority on which the recent decisions depend is Nanabhai Vallabhdas v. Nattiabhaj Haribhai, 9 Bom. H.C. Rep. 89(1). In that case an application was moved for review of a judgment, passed in special appearl, on the ground that new evidence had been discovered after the appeal was decided. The matter was referred to a Full Bench which held that:

'THECourt, when sitting in special appeal, has not ordinarily any power to determine questions of fact were the Court, on review of its decree made in special appeal, to set aside that decree on the discovery of new evidence, it could not make use of that new evidence for the purpose of altering any of the findings on questions of fact by the District Court. Nor would the discovery of new evidence subsequently to the making of the decree of the District Court be any ground of special appeal, although it might be good ground for an application to the District Court for a review of its decree, provided no special appeal shall have been admitted by the High Court.'

(11) It is to be observed that here the application was for review of judgment, which is a very different thing to an application for producing additional evidence in appeal. The grounds for those two kinds of applications are not the same, and they are governed by different rules. This could furnish a reason for distinguishing the case. However, it does yield the ratio that in ah appeal maintainable only on question^ of law, the court 'ordinarily' has no power to determine questions of fact. That is a proposition which no one could dispute. At the same time, the word 'ordinarily' imports the qualification that even in such an appeal there may be occasions when the power to determine questions of fact exists. Those exceptional situations must be discerned from other rules of law, for the judgment of the Full Bench contains no more discussion than the passage which I have quoted.

(12) Commentaries on the Code of Civil Procedure show that there is a conflict of opinion on the question whether Order 41 rule 27 applies to a second appeal or not. It will be recalled that Order 42 rule 1 expressly says : 'The rules of Order 41 shall apply, so far as may be, to appeals from appellate decrees'. The cases which hold that additional evidence cannot be allowed in a second appeal emphasise that such an appeal lies only on a question of law and, thereforee, infer that Order 41 rules 27 is redundant. They point to the words 'so far as may be' in Order 42 rule 1. The conclusion is fortified by reference to section 103 of the Code which provides that : 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.' This section, it is said, specifies the only circumstances in which an issue of fact may be determined in a second appeal- And. even then it expressly confines the court to the evidence already on record, which further goes to show that Order 41 rule 27 is excluded. Two typical cases, in which this line of reasoning is expounded are P. V. Subba Raja v. S. S. Naraygna Raja and others, : AIR1954Mad1074 , and Balvant Yadneshwar v. Srinivas Appaji Kulkarni, Air 1959 Mys 244.

(13) On the other hand, there are many cases which clearly hold that Order 41 rule 27 does apply to a second appeal : for example Sumanlal Bhagwandas Kapadia v. Naginlal Bhagwandas Kapadia, : AIR1967Guj87 . And Venku Reddi v. Pichi Reddi and others, Air 1956 A. P. 250, expressly dissents from P.V. Subba Raja v. S. S. Narayana Raja and others, : AIR1954Mad1074 . These cases hold that neither the intrinsic nature of a second appeal nor section 103 militate against the application of Order 41 rule 27 by virtue of Order 42 rule 1.

(14) I agree with the latter view. The need for Order 41 rule 27 in a second appeal can be demonstrated as follows. Suppose the court of first instance has refused to admit evidence which ought to have been admitted'. This, according to sub-clause (a) of rule 27(1), is a good ground for admitting additional evidence in appeal. Suppose, again, that the first appellate court upholds the decision of the court of first instance on the point of admissibility. Thereby it, too, has 'refused to admit evidence which ought to have been admitted'. In second appeal the decision on the point is reverse. The necessary result must be that the court of second appeal should now allow the production as additional evidence of that which was wrongly denied admission by both the courts below. For, all the requirements of sub-clause (a) are fulfillled. Similar examples can be worked up in relation to sub-clause (b)- After all, a court of second appeal can as much require 'any document to be produced or any witness to be examined to enable it to pronounce judgment' as a court of first appeal. And 'other substantial cause' can arise at any stage.

(15) These considerations convince me that Order 41 rule 27 does apply to a second appeal. As regards section 103. I think, its purpose is altogether different. It is not an exception to section 100, but only a clarification or Explanationn. It enables the court of second appeal to correct a finding of fact in which the error was induced by one of the grounds mentioned in section 100 or to determine an issue of fact which was not determined at all, obviously because of an error of the same kind. So, even if section 103 had not existed, the same results would have flowed from section 100 itself. This is borne out by she fact that in the earlier Codes there was no provision equivalent to secton 103, and it was inserted in the Code of 1908 merely to overturn those cases which had held that when an issue of fact had not been determined or been wrongly determined by the lower appellate court the High Court had no option but to remand the case. thereforee, it should be apparent, that section 103 has no concern with the question whether additional evidence can be allowed in second appeal. It merely ensures to the court the consequential power to decide a question 'of fact after a ground has first been established under section 100.

(16) NOW. the three cases on which counsel for the respondent relies, and which support his submission, are Vora Ibrahim Akbarali v. The State of Gujarat & Anr., (1968) 9 G. L. R. 939. Thakkar Anandji Parshottamdas and others v. Dharamshi Kalabhai (deceased) and others, : AIR1972Guj70 and Lilaram Jamiatrai and others v. Meghraj Hardasmal Kalwani and others, Air 1972 Guj 65. It is probably not a coincidence that all these are decisions of the High Court of Gujarat. The view they express is derived from the cases which follow, or purport to follow, Nanabhai Vallabhdas v. Nathabhai Haribhai, 9 Bom. H.C. Rep. 89. In the first two, the proposition is accepted that Order 41 rule 27 does not apply to a second apply. In the third, by analogy, the like proposition is accepted in relation to a power of revision exercisable only on matters of law. On the basis of these propositions, all three of them hold that evidence of subsequent events cannot be admitted in a second appeal or revision. I have already given my reasons for dissenting from the proposition that Order 41 rule 27 does not apply to second appeals. But leaving that aside, these cases wholly omit to notice the distinction between subse- quent events and new evidence of facts existing at the date of trial. And, what is more, they completely omit to notice Order 41 rule of the Code.

(17) The true position is that the power to take notice of subsequent events is a corollary from the theory that an appeal is a re-hearing. Section 107(2) of the Code gives effect to this theory when it says that 'the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted therein'. With greater particularity, but on the same principle, Order 41 rule 33 provides :

'THEappellate court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order. as the case may require, ............................ A similar rule has existed in the Rules of the Supreme Court in England for a long time. Dealing with it in Quilter v. Mapleson, (1882) 9 Q.B.D. 672, Jessel, M.R. said : 'It was, in my opinion, intended to give appeals the character of rehearings, and to authorise the Court of Appeal to make such order as ought to be made according to the state of things at the time. Bowen, L.J., drew attention to the feature that it '............does not merely enable the Court of Appeal to make any order which ought to have been made by the Court. below, but to make such further or other order as the case may require.'

(18) In that case relief was granted under a statute which came into force when the appeal was pending. However, from this, it would not be right to deduce that only subsequent changes in the law can be noticed by a court of appeal. In Atorney-General (At the relation of Tamworth Corporation and others) v. Birmingham, Tame and read Drainage Board, (1911) All E.R. Rep. 92, a perpetual injunction granted by the court below was discharged because 'the state of things' had changed by the time the appeal was heard. The House of Lords upheld the decision of the Court of Appeal, and Lord Gorell said : In my opinion, the Court of Appeal were entitled to make such order as the judge could have made if the case had been heard by him at the date on which the appeal was heard'. He relied upon Quilter v. Mapleson, (1882) 9 Q.B.D. 672, and no one suggested that the principle enunciated in that case could not be invoked if the change was in the facts, and not the law.

(19) Any possible doubt is resolved by a quotation from an American case cited with approval by Gwyrer, C.J., in Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhuri and others, . In the American case Hughes, C.J., is reported to have said :

'WEhave frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the court is bound to consider any change, either in -fact or in law, which has supervened since the judgment was entered. In the judgment delivered by Varadachariar, J., in the case before the Federal Court, there are some important and elucidating statements. He discountenances the 'hypothesis' that an appellate court is 'only a court of error', and says 'its power to do justice between the parties cannot be restricted to cases in which it is able to hold that the lower court has gone wrong in its law'. Notwithstanding that it is not expressly so stated in the Code, as it is in the English Rules he comes to the conclusion that 'an appeal is under the processual law of this Country in the nature of a re-hearing'. He shows that it is on the basis of this theory that 'the Court of appeal is entitled to take into account even facts and events which have come into existence after the decree appealed against'.

(20) This decision of the Federal Court was approved and followed by the Supreme Court in Surinder Kumar and others v. Gian Chand and others, : [1958]1SCR548 , and a subsequent new fact was taken into consideration when deciding the appeal. Additional, and more recent, approval of that decision will be found in Pasupuleti Venkateswarlu v. The Motor & General Traders, : [1975]3SCR958 , and Rameshwar and others v. Jot Ram and others, : [1976]1SCR847 .

(21) It does not appear to have ever been doubted that Order 41 rule 33 applies to second appeals. At any rate, there are many cases in which it has been held to apply. As two random instances I would mention Sawan Singh and another v. Haveli Shah Sardari Lal and another, Air 1935 Lah 32, and Doman Sahu and another v. Gangu Nayek, : AIR1940Pat300 . Both were second appeals in which Order 41 rule 33 was used to take note of a change in the facts. An equivalent case in which the second appeal was under a Rent Control statute is Miss Badhani v. A. Hoogewarfe, 1957 R.C.J. 262. in this last case, as well as in Harbans Singh v. Sohan Singh and another, 1962 P.L.R. 834, it is stated that the reasons why an appellate court takes notice of subsequent events are 'to avoid unnecessary litigation and to do complete justice between the parties'. The other cases to which I have elsewhere referred indicate, in general, the same reasons. These reasons can be equally valid and operative in a second appeal as on any other occasion. A court of second appeal does not cease to be a court of justice. If by taking notice of subsequent events there is some infringement of the principle that the findings of fact made by the lower appellate court are treated as final in second appeal, then, to the extent, section 100 must be read as being subject to section 107 and Order 41 rule 33. The paramount consideration of justice leads compellingly to this interpretation.

(22) For these reasons I am unable to agree with the cases from Gujarat on which counsel for the respondent relied. It seems to me that those judgments were delivered per incuriam as Order 41 rule 33 was not even cited. Nor do they appear to have been followed by any other High Court.

(23) The only remaining question is whether I should allow evidence to be produed on the matters already enumerated. It was pointed out in Kesar Das v. Bakshi Ram and another, 1964 P.L.R. 1165, that the requirements of a landlord are not static and keep on changing. When the ground for eviction pleaded in this case is so susceptible of variation, justice demands that the latest facts be known. And, if the subsequent events are ignored now, they could well form the basis of further proceedings later. thereforee, in my opinion, the right course is to take notice of the subsequent events alleged, provided they are proved. Since the facts are disputed, evidence will have to be recorded.

(24) Accordingly, this application is allowed, and both parties are' permitted to produce evidence as regards the matters specified above. Having regard to all the circumstances, I make no order as to costs.


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