1-5. * * * * *
6. It will be worthwhile to consider the Civil Application No.1328 of 1971 given by the appellants before dealing with the question on merits. According to the appellants, except respondent No.3 and the members of his family, other respondents had not come to India until now. It is also stated that all the respondents except respondent No.3 have accepted the citizenship of Africa and they are already settled there. It was further urged that the respondents had kept two flats in Bombay which were lying vacant and therefore, they did not require the suit premises at Visavadar. The pertinent question which arises for my consideration is whether sitting in a second appeal, it would be open to me to take into consideration the subsequent development which has taken place after the decree was passed by the first appellate court. I entirely agree with the learned Advocate for the respondents that by considering this application, virtually, I would permit the appellants to lead additional evidence before this court, which is not permissible in a second appeal. In Second Appeal No.756 of 1960 with Civil Applns. Nos. 184-A of 1960, 1258 and 1259 of 1964 D/-24-2-1965 (Guj), Divan J. after taking into consideration several decisions of the Bombay Calcutta and Madras High Courts. Observed:--
'I respectfully agree with the observations of the learned Judges of the Calcutta High Court. In the instant case also the additional evidence which the plaintiff-respondent in this second appeal wants to lead before this court has come into existence after the disposal of the first appeal by the learned District Judge, Baroda, and during the pendency of the present second appeal. However, in the light of this additional evidence the original plaintiff wants me to decide a question of fact. The only ground of attacking the judgment or decree of the lower appellate court can be one of the grounds set out in Section 100, Civil P.C. and the only manner of supporting that judgment and decree can be that none of the effect set out in Section 100 of the Civil P.C. is attracted so far as the present case is concerned. In view of this judgment of the Calcutta High Court, I have come to the conclusion that this civil application for leading additional evidence cannot be allowed.'
'It was in the alternative urged before me on behalf of the petitioner in this civil application that if there is no power under the provisions of Order 41, Rule 27 and Section 100 of the Civil P.C., the High court should exercise the inherent powers under Section 151 of the Civil P.C. and allow such additional evidence to the led. Now, this argument is not tenable, because it is well settled law that where there is a specific provision made by the Legislature on any particular point, the provisions of Section 151, Civil P.C. cannot be invoked and if the Legislature in terms laid down in Sections 100 to 103 of the civil P.C. that the High Court can entertain second appeal only on points of law as mentioned in those sections and that the final court for the purposes of facts is the first appellate court, it is clear that the provisions of Section 151 of the Civil P.C. and the inherent powers of the High Court cannot help the original plaintiff in leading additional evidence at the state of second appeal. I must come to my conclusions on points of law on the facts as found by the first appellate court and it is not open to admit additional evidence and the provisions of Order 41, Rule 27 of the Civil P.C. cannot apply so far as this second appeal is concerned.'
Further, relying on the observations made in the case of Ramchandra v. Krishnaji, ILR (1904) 28 Bom 4, wherein it was observed 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 this course cannot be pursued when the review petition has been already presented to and rejected by the lower court.' Divan, J., held that the proper course for the appellant is to withdraw the appeal and present a review application to the lower appellate court. Mr. R.N. Shah, however, referred to the decision of Miabhoy, J. in Civil Revn. Appln. No.416 of 1960. D/- 13-2-1963 (Guj) in support of his contention that if the subsequent events extinguished the original cause of action, it would be incumbent on the court to take into consideration the subsequent events in the interest of justice. In my opinion, this case cannot apply to the facts of the instant case. In the case before Miabhoy. J., the applicant had not requested the High Court to permit him to lead additional evidence. The applicant had objected to the consideration of the subsequent events by the lower appellate court. That objection was overruled by the High Court on the ground that the lower appellate court was justified in taking into consideration the subsequent events viz., the death of Thakorlal which extinguished the original cause of action. In that case, the plaintiff had obtained a decree for eviction on the ground that the suit premises were required for the purpose of Thakorlal. During the pendency of the appeal in the district court, the said Thakorlal died. An application was, therefore, given on behalf of the defendants stating that as Thakorlal was no more alive, the decree passed for his bona fide requirement no longer survived. The learned Assistant Judge took into consideration the subsequent events viz., the death of Thakorlal in deciding the appeal and he reversed the decree passed by the learned trial Judge. Against that, the revision application was preferred to the High Court where. Miabhoy, J., observed:--
'But, the question as to whether the decree for eviction is or is not justified must necessarily be answered with reference to the requirement on the basis of which the decree for eviction was sought and if the basis of the decree was the requirement of Thakorlal and if what requirement ceases during the pendency of the litigation, then, the cause of action no longer survives and the decree for eviction cannot be justified in favour of Thakorlal.'
It will thus be seen that in that case, it was the lower appellate court which had taken into consideration the subsequent events thereby taking into consideration the additional evidence. It is not disputed that under O.41, R.27, Civil P.C., it is open to the lower appellate Court to permit additional evidence for the purposes mentioned therein. It cannot, therefore, be said that when the lower appellate court took into consideration the subsequent even about the death of Thakorlal thereby allowing additional evidence to be produced before it, it had exceeded its jurisdiction and had erred in law. In the instant case, by giving the present application, the appellants want me to consider the additional evidence in the second appeal, which evidence in the second appeal, which is not permissible in law. With respect, therefore, I entirely agreed with the view of Divan, J. and hold that it is not open to me to consider the subsequent events and thereby allow additional evidence in a second appeal. It was open to the appellants to take appropriate steps as suggested by Divan, J. in his judgment, viz. To withdraw the appeal and give a review application to the first appellate court. The appellants apparently did not choose to take that course and instead have given the present application which is not permissible in law. The said application is, therefore, rejected.
7. Mr. R.N. Shah also relied on the unreported rulings of V.R. Shah, J. in Second Appeal No.395 of 1964, D/-22-9-1970 (Guj) and Sompura, J. in second Appeal No.234 of 1964. D/- 19-11-1968 (Guj). It may be noted that in those cases, the question regarding the power of the High Court to permit additional evidence under Rule 27. Order 41, Civil P.C., in a second appeal, did not arise and no such point appears to have been canvassed before them. A perusal of these cases shows that on account of subsequent events. Additional evidence was permitted by the lower appellate courts. Under these circumstances, these rulings cannot help the appellants.
8. The next question which arises for my consideration is whether the order passed by the learned District Judge permitting the present respondents to lead additional evidence was invalid and illegal, as alleged by Mr. Shah. Mr. Shah referred to Rule 27, Order 41, Civil P.C. and urged that unless the cae of the plaintiffs was covered by the provisions of Order 41, Rule 27, Civil P.C., it would not be open to the court to permit the plaintiffs to lead additional evidence. He urged that the court while permitting the plaintiffs to lead additional evidence did not record its reasons for doing so. He submitted that it was mandatory for the court to give reasons before permitting the plaintiffs to lead additional evidence. Mr. Shah urged that a perusal of the application for additional evidence given by the plaintiffs in the lower court does not indicate that the contentions raised in that application would be covered by any of the clauses of rule 27, Order 41, Civil P.C. he therefore, urged that unless the relief claimed by the plaintiffs in their application was covered by the provisions of rule 27 , Order 41. Civil P.C., it would not be open to the court to permit the plaintiffs to lead additional evidence and even if the learned Advocate for the defendants had given his consent, that would be of no avail and the order passed by the court in contravention of rule 27, Order 41, would be clearly illegal. In support of his say, he referred to the case of the Municipal Corpn, of Greater Bombay v. Lala Pancham, AIR 1965 SC 1008. Wherein, it was observed:--
'Under Order 41, Rule 27, the appellate court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate court to let in fresh evidence at the appellate stage there even without such evidence it can pronounce judgment in a case. It does not entitle the appellate court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate court is empowered to admit additional evidence.'
Mr. Shah also referred to the case of Parsotim Thakur v. Lal Mohar Thakur wherein, it was observed:--
'The provisions of Section 107 as elucidated by Order 41, Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak part of his case and fill up omissions in the court of appeal. Under Rule 27, C1. (1) (b) it is only where the appellate court 'requires' it (i.e. finds it 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 evidence as it stands. Wherever the court adopts this procedure it is bound by Rule 27 (2) to record its reasons for so doing and Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified.'
Relying on these observations Mr. Shah urged that in the instant case, the learned District Judge has not stated that he required additional evidence in order to enable him to pronounce the judgment. He has not stated that he required it for any other substantial cause. If fact, Mr. Shah urged that the learned District Judge mechanically allowed the plaintiffs to lead additional evidence in contravention of the mandatory provisions of Rs.27, O.41 and therefore, the order of the learned District Judge deserved to the set aside. With respect, I agree with the principle enunciated by the Supreme Court and the Privy Council in the cases referred to above. There can be no quarrel that the party as such has no inherent right of leading additional evidence at the appellate stage. Additional evidence can only be permitted for the purposes specified in Rule 27, Order 41. It is true that in the instant case, the learned District Judge has not given any reason stating that he required the additional evidence for the purpose of pronouncing the judgment or for any other substantial cause. As observed by the Privy Council, it is incumbent on the court to give reasons for permitting additional evidence. Taking into consideration the ratio of the two cases referred to above. Mr. Shah apparently is right when he stated that the order of the learned District Judge was wrong and deserved to be set aside. However, in view of the special facts o this case, it is not open to Mr. Shah to urge that the order passed by the learned District Judge was wrong. The order of the learned District Judge clearly shows that the learned Advocate for the defendants had no objection if additional evidence was allowed to be produced. The learned District Judges, therefore, by consent of the parties, permitted additional evidence to be adduced in his court. After having given his consent, it is not open to the defendant now to urge before this court that the permission given by the learned District Judge for production of additional evidence in his court was contrary to the provisions of R.27, O.41. in this connection, it will be worthwhile to refer to the case of K. Venkataramiah v. A. Seetharama Reddy : 2SCR35 , wherein the Supreme Court observed:--
'Clearly the object of the provision is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced -- whether this was done on the ground (I) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause. Where a further appeal lies from the decision of the appellate court such recording of the reasons is necessary and useful also to the court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the court below. The omission to record the reason must therefore be treated as a serious defect. Even so, we are unable to persuade ourselves that this provision is mandatory. For, it does not seem reasonable to think that the legislature intended that even though in the circumstances of a particular case it could be definitely ascertained from the record why the appellate court allowed additional evidence and it is clear that the power was properly exercised within the limitation imposed by the first clause of the rule all that should be set at naught merely because the provision in the second clause was not complied with. It may be mentioned that as early as 1885 when considering a similar provision in the corresponding section of the Code of 1882. viz. Section 586, the High Court of Calcutta held that this provision for recording reasons is merely directory and not imperative. Gopal Singh v. Jhakri Rai (1886) ILR 12 37. We are aware of no case in which the correctness of this view has been doubted. It is worth noticing that when the 1908 Code was framed and O.41. R.27 took the place of the old Section 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recording reasons imperative. It is true that the word 'shall' is used in Rule 27 (2). But that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing, additional evidence does not vitiate such admission.'
Mr. Shah, however, urged that the supreme Court in a subsequent case referred to earlier and the Privy Council in Parsotim Thakur's case had observed that the provisions of Order 41, Rule 27 were mandatory and therefore, the observations of the Supreme Court in the 1963 case cannot be said to be correct preposition of law. It is not open to me to say that the view propounded by the Supreme Court in the 1963 case referred to above is not correct. In the subsequent case, reported in 1965, the Supreme Court does not seem to have considered this case. That apart, even the Supreme Court in this case has observed:--
'The omission to record the reason must be treated as a serious defect.' However, after taking into consideration the use of the word 'shall' in Rule 27 (2), the Supreme Court was of the opinion that -- 'that by itself does not make it mandatory.' Apart from the controversy whether the provisions of Rule 27, O.41, were mandatory or not, the special facts of this case would clearly prohibit the defendant- appellants to urge before this court that the permission given by the first appellate court to the plaint to lead additional evidence was illegal, for the simple reason that the learned Advocate for the appellants-defendants in that court had given his consent to the production of additional evidence. This point was also considered by the Supreme Court in the case referred to above wherein it was observed:--
'On the principle laid down in Jagarnath Pershad v. Hanuman Pershad, (1909) 36 Ind App 221 (PC) that when additional evidence was taken with assent of both sides or without objection at the time it was taken. It is not open to a party to complain of it later on, the appellant cannot now be heard to say that the additional evidence was taken in this case in breach of the provisions of law.' It is not disputed that in the instant case, as observed by the learned District Judge, the learned Advocate for the defendants had given his consent to the production of the additional evidence in that court. When the learned Advocate for the plaintiffs gave application to the learned District Judge for permitting him to examine Judge for permitting him to examine plaintiff No. 2 who was present in court and who was unable to give his evidence at the time of the trial of the suit, the Advocate for the defendants did not object to the said application but on the contrary, gave his consent. I do not agree with Mr. Shah that the consent by the learned Advocate for the defendants was given inadvertently and that it cannot bind the defendants. In my opinion, it cannot be said that the learned Advocate for the defendants did not know the legal position. The learned Advocate is presumed to know the provisions of R.27, O.41. If the learned Advocate did not choose to object to the additional evidence which was proposed to be tendered by the plaintiffs in the lower appellate court and in fact gave his consent, it would not open to the defendants in the second appeal to urge that the court was wrong in allowing the additional evidence contrary to the provisions of rule 27. As stated by the supreme Court in the case referred to above. In the case of (1909) 36 Ind. Ap 221 (PC) on which reliance was placed by the Supreme Court, it was observed by the Privy Council as under:--
'On the argument of the appeal it was objected that the examination of the three witnesses by the court of appeal was irregular; but it appears that, that examination was taken with the assent of both sides. It is not open, therefore, to anybody to complain of it now.'
In the light of the above decisions of the Supreme Court and the Privy council, in my opinion, it would not be open to the present appellants to object to the additional evidence which the recorded by the learned District Judge, for the simple reason that the learned Advocate for the defendants in that court had given his consent to do so.
9-12. * * * *
13. Appeal dismissed.