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Lilaram Jamiatrai and ors. Vs. Meghraj Hardasmal Kalwani and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 508 of 1968 and Civil Appln. No.1567 of 1971
Judge
Reported inAIR1972Guj66
ActsBombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 29 and 29(3); Code of Civil Procedure (CPC), 1908 - Sections 115 - Order 7, Rule 7 - Order 41, Rule 27
AppellantLilaram Jamiatrai and ors.
RespondentMeghraj Hardasmal Kalwani and ors.
Appellant Advocate G.C. Patel, Adv.
Respondent Advocate R.N. Shah, Adv. for; N.R. Oza, Adv.
Cases ReferredChhotekhan v. Mohammad Obedulla Khan
Excerpt:
.....- subsequent legislation affecting rights of parties in litigation can be taken into account - no subsequent events in shape of new facts can be considered at appellate or revisional stage - held, additional evidence of new subsequent events cannot be allowed to be produced for first time in civil revision application. - - if this course is followed, it will firstly disregard the best method of investigation of facts--known to our system of law--under which oral and documentary evidence is received from parties and is subjected to searching scrutiny and rigorous churning in order to discover the grains of truth lying hidden therein. even where additional evidence is permitted to be produced for 'any other substantial cause',it is well settled that it must be in pursuance of..........case came within its purview. even otherwise the court has power in proper cases to take notice of events subsequent to the suit in order to shorten litigation, avoid unnecessary expenditure and do complete justice between the parties.'in bhola ram v. peari devi, air 1962 pat 168 a division bench of patna high court applied this principle and took note of a subsequent legislation affecting the rights of the parties.10. it is not necessary for me to multiply references to case law of the point. a full bench decision of the nagpur high court in chhotekhan v. mohammad obedulla khan, air 1953 nag 361 (fb), in my opinion, has very succinctly and neatly stated the scope and applicability of this principle. mr. justice hidayatullah has stated the following principle in that decision.'a long.....
Judgment:
ORDER

1. This Civil Revision Application arises out of the suit for possession between a landlord and a tenant. The plaintiff-landlord filed in the court of the Civil Judge (Senior Division) at Baroda Regular Civil Suit No.490 of 1963 for recovering possession of the suit premises from the defendants on three grounds. His first ground was that he required the suit premises reasonably and bona fide for his personal occupation. His second ground was that the defendants had unlawfully sub-let the suit premises and his third ground was that the defendants had caused damage to the suit property. The learned Trial Judge negatived the plaintiff's contentions relating to unlawful sub-letting and damage to the suit property but upheld the contention that he required the suit premises reasonably and bona fide for his personal occupation. In that view of the matter he passed against the defendants decree of possession.

The defendants appealed to the district Court. The learned Extra Assistant Judge, on consideration of evidence before him, upheld the finding recorded by the learned Trial Judge that the plaintiff required the suit premises reasonably and bona fide for his personal occupation. In that view of the matter confirmed the decree for possession passed by the learned Trial Judge and dismissed the appeal.

3-6. Mr. Patel has, however, pressed before me Civil application No.1567 of 1971 which the defendants have made for leading additional evidence. He wants to lead additional evidence of three new and subsequent events. The first event, alleged by the defendants, is that the plaintiff since the passing of the appellate decree has expired. The second alleged event is that Tulsidas, one of the plaintiff's sons has got a bungalow in his possession in Nayana Society in the City of Baroda and it is sufficient for housing the plaintiff and his family. The third alleged even is that the plaintiff's another son--G. M. Kalwani--has got another similar bungalow in Nayana Society in the city of Baroda. According to him, if these events are allowed to be proved in this revision application by additional evidence, the plaintiff's case for reasonable and bona fide requirement of the suit premises for his personal occupation will be completely demolished. He has emphasized the fact that the plaintiff has not filed any affidavit in reply to this Civil Application. It is true that the plaintiff has not filed any affidavit in reply. I also do not find any affidavit in support of this application. For the reasons which follow, I am of the opinion that additional evidence of new and subsequent events cannot be allowed to be led in a revision application. This revision application has been filed under Section 29 of the Bombay Rent Act which confers jurisdiction upon this Court only to satisfy 'itself that any such decision in appeal was according to law. The revisional jurisdiction of this Court under Section 29 extends only to correction of errors of law or to removal of legal infirmities in the appellate decrees passed under the Bombay Rent Act. In my opinion, it means that this Court has to accept the facts of the case as they are and find out whether the decision contains any errors of law or legal infirmities which it can correct or remove. If the record does not disclose any such error or infirmity, it has no jurisdiction to interfere with the appellate decision. It cannot add new and subsequent events to the record and say that the appellate decision is not according to law. I, therefore, cannot examine the legality of the decree on facts which were not before the lower Appellate Court and which occurred subsequently.

Additional evidence of new and subsequent events also cannot be allowed to be led in a revisional application for very goods and cogent reasons. New events which may be attempted to be brought on record will require investigation and proof. How will High Court investigate into them in a revisional application. One of the ways is to receive affidavits from parties and to decide upon them. If this course is followed, it will firstly disregard the best method of investigation of facts--known to our system of law--under which oral and documentary evidence is received from parties and is subjected to searching scrutiny and rigorous churning in order to discover the grains of truth lying hidden therein. Will the High Court set at naught such an investigation into truth carried out by the Courts below even though they contain no errors and adopt a week and facile method of receiving proof of subsequent events by affidavits? Shall it totally disregard what the Courts below have done and substitute its decision, based on affidavits disclosing subsequent facts, for the decisions of the Courts below? I do not think it can be done. It if cannot be done, shall it hold in a revisional application a fresh trial on new events, summon witnesses, examine and cross-examine them and covert a revisional application into an original action? If this course is followed, every revisional application will have to be converted into an original action to be tried on new events. It also cannot be done. Section 29 of the Bombay Rent Act does not permit it to be done. Shall it then set aside the decisions of the Courts below even though there are no errors of law therein and remand the suit for a fresh trial on new and subsequent events producing in its wake a fresh decree, a fresh appeal and a fresh revisional application? And is there any guarantee that no new events will occur during this fresh trial, fresh appeal and fresh revisional application? If this probability cannot be ruled out, shall we again set aside decrees of courts below and order a fresh trial and fresh investigation into more recent and subsequent events? Shall we produce endless trials and never-ending litigation's between the same parties in respect of the same prayers? The attempt to reopen a case on account of subsequent occurrences, for the aforesaid reasons, appears to me to be fraught with serious consequences and contrary to and inconsistent with the system of law and justice we have in this country.

Let us now examine law on the subject. Order 41, Rule 27 deals with the question of producing additional evidence, it has no application to the instant case for more than one reason. It permits additional evidence to be produced. Subject to the satisfaction of the conditions specified therein, only in support of the facts pleaded by the parties and issues arising therefrom and not for bringing new and subsequent events on record so as to dislodge an otherwise valid decision. Even such additional evidence can be produced only if the Appellate Court requires it to be produced for pronouncing its judgment or for any other substantial cause. It cannot permit, at the instance of and for the benefit of a party, production of additional evidence of new and subsequent events. Even where additional evidence is permitted to be produced for 'any other substantial cause', it is well settled that it must be in pursuance of requirement of the Court and not because a party desires to produce it for his own benefit. Order 41, Rule 27, therefore, cannot be invoked in a situation of this type and has no application to it.

Reliance is also placed upon Order 7. Rule 7 of the Code of Civil Procedure for this purpose. Rule 7 makes no such express provision. Case law has however developed on the subject dealt with by Rule 7. It shown that subsequent changes or alterations in the circumstances can be taken into account by a Court of law for the purpose of shortening litigation or doing complete justice between parties. I am not concerned with its applicability to original actions where a Court of first instance is not bound by fetters by which a court of appeal under Section 100 of the Code of Civil Procedure or a Court of revision under Section 115 of the Code of Civil Procedure or Section 29 of the Bombay Rent Act is bound. Before a Court of first instance, the entire suit and all issues involved therein are at large and if subsequent events can be taken into account for achieving any one or both of the aforesaid purposes, it can do so. By doing so, it is not going to disturb any recorded decision nor is it going to lead to the remand of the suit nor is it necessarily going to produce a fresh trial of the suit all over again. However, without entering into the scope of its applicability to trial actions, I must examine the question of its applicability to appellate or revisional actions. In Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva : AIR1959SC577 , the Supreme Court has extended the application of this principle to an appellate action if there is a subsequent change in law. It has relied in that behalf upon the decision of the Federal Court in Lachmeshwar Prasad Shukul v. Keshwar Lal Chadhuri, . This is what the Supreme Court has said on the subject.

'When this appeal came on for hearing the learned Advocate for the respondents took a preliminary objection that the suit filed by the plaintiff must in any event fail, having regard to the provisions of Section 14 of the Hindu Succession Act, 1956 (30 of 1956), hereinafter referred to as the Act. Hence the present appeal arising out of that suit must also fail. It was contended on behalf of the respondents that either there was a valid adoption or there was not. If there was a valid adoption and the decisions of the High Court and the District Judge on this question were correct, then obviously the suit of the appellant must be dismissed. If, on the other hand, it was found that the adoption of the second defendant by Veeravva was either invalid or, in fact, had not taken place then under the provisions of Section 14 of the Act Veeravva became the full owner of her husband's estate and was not a limit owner thereof. Consequently, the appellant's suit was not maintainable. In view of this submission we are of the opinion that the point raised by way of preliminary objection must first be considered and decided. It is well settled that an appellate court is entitled to take into consideration any change in the law.'

The Supreme Court in the aforesaid case took into account the subsequent enactment of Hindu Succession Act, 1956 and its effect on the rights of the parties. A similar question arose before Mr. Justice Rajadhyaksha and Mr. Justice Vyas in the High Court of Bombay in Laxmibai Wamanrao v. Wamanrao Govindrao. : AIR1953Bom342 . Therein, the High Court of Bombay took into account the subsequent enactment of Hindu Married Women's Right to Separate Residence and maintenance Act, 1946 and its effect upon the rights of the parties. This is what Mr. Justice Rajadhyaksha, speaking on behalf of the Division Bench, has observed.

'The first point has not been pressed before us by the learned advocate for the respondent-defendant. It is not contended before us that because the Act came into force five days after the institution of the suit, the plaintiff could not obtain the benefit of it. The ordinary rule is that a Court should give its decision on the facts and circumstances as they existed at the date of the institution as they existed at the date of the institution of the suit or at the date of any subsequent amendment of the pleadings and should not taken notice of events or decisions which have happened after such date. In the present case when the amendment of the pleadings was allowed in April 1948, the Act had already come into force and therefore the plaintiff was entitled to get relief under the Act if the facts of the case came within its purview. Even otherwise the Court has power in proper cases to take notice of events subsequent to the suit in order to shorten litigation, avoid unnecessary expenditure and do complete justice between the parties.'

In Bhola Ram v. Peari Devi, AIR 1962 Pat 168 a Division Bench of Patna High Court applied this principle and took note of a subsequent legislation affecting the rights of the parties.

10. It is not necessary for me to multiply references to case law of the point. A Full Bench decision of the Nagpur High Court in Chhotekhan v. Mohammad Obedulla Khan, AIR 1953 Nag 361 (FB), in my opinion, has very succinctly and neatly stated the scope and applicability of this principle. Mr. Justice Hidayatullah has stated the following principle in that decision.

'A long track of decisions has settled that an action must be tried in all its stages on the cause of action as it existed at the commencement of the action......No doubt. Courts 'can' and sometimes 'must' take notice of subsequent events, but that is done merely 'inter parties' to shorten litigation and no to given to a defendant an advantage because a third party has acquired the right and title of the plaintiff. The doctrine itself is of an exceptional character only to be used in very special circumstances. It is all the more strictly applied in those cases where there is a judgment under appeal.'

11. Discussing its applicability to an appellate action, Mr. Justice Hidayatulah has observed as under:

'An appeal is undoubtedly a continuation of the proceedings in a suit but this principle is equally applicable to suits. An appellant is not in any better position than the defendant in a suit. An appellant can only succeed if he shown that the judgment under appeal is wrong and must be set aside. The decree of the first Court does not cease to be binding on the parties during the pendency of the appeals ................. I am of the opinion that though an appellate Court which retains control of the judgment, 'can' and 'must' take such action in the light of subsequent events as will shorten litigation, it must preserve the rights of both parties and subserve the ends of justice.'

12. In my opinion, therefore, a subsequent legislation affecting the rights of the parties in the litigation can be taken into account, but not other subsequent events in the shape of new facts can be considered at an appellate or revisional stage. An appellate or revisional court must confine itself to the circumstances of the case on record when the judgment under appeal or revision was delivered. To do otherwise is 'to place a premium on the protraction of litigation' -- to use the words of Justice Sir Asutosh Mookerjee of Calcutta High Court. In other, words, to do otherwise would mean that, to use the language of that great and eminent Judge again, the rights of the parties would depend, not upon the merits of the controversy between them but upon the length of the over with the litigation might be protracted and upon accidental circumstances whether a subordinate court has or has not taken an erroneous view of the rights and obligations of the parties.' In other words, a suit must be tried and decided on its original cause of action as stated in the plaint or in the amended plaint at all stages of that litigation.

13. Mr. Patel has however invited my attention to a few unreported decisions of this Court. One is the decision of Mr. Justice V.R. Shah in Second Appeal No.395 of 1964, D/-22-9-1970 (Guj). The second decision is of Mr. Justice Miabhoy in Civil Revn, Appln. No.416 of 1960, D/-13-2-1963 (Guj). The third decision is of Mr. Justice Sompura in Second Appeal No.234 of 1964, D/-19-11-1968 (Guj) and the fourth decision is in the Civil Revn. Appln. No.845 of 1962 (Guj) decided by Mr. Justice, N.G. Shelat on 19-11-1966. In all these cases, contends Mr. Patel, additional evidence was allowed to be led in order to prove subsequent events. The first three decisions have been considered by Mr. Justice A.A. Dave in Second Appeal No.1088 of 1965 decided by him on 28-7-1971 (reported in : AIR1972Guj70 . The decision of Mr. Justice N.G. Shelat lays down no principle and has application only to the facts of that case. After having considered them and after having considered the decision of Mr. Justice Divan in Second Appeal No.756 of 1960, D/- 24-2-1965 (Guj) he has recorded the conclusion that where an attempt is made by an appellant in a Second Appeal to lead additional evidence he cannot be allowed to do so. It is contrary to the provisions of Section 100 and Order 41, Rule 27 of the Code of Civil Procedure. Such additional evidence on subsequent events cannot also be, in the view of Mr. Justice Divan, allowed to be produced in second appeal even under Section 151 of the Code of Civil Procedure. I fully agree with the views expressed by Mr. Justice A.A. Dave and by Mr. Justice Divan respectively in Second Appeal No.1088 of 1965. D/-28-7-71 (reported in AIR 1972 Guj 70); and in Second appeal No.756 of 1960, D/-24-2-65 (Guj). If it cannot be done in a Second Appeal, it can much less be done in a Civil Revision application. I, therefore, hold that additional evidence of new and subsequent events cannot be allowed to be produced for the first time in a Civil Revision Application.

14. In the result, the Civil Revision Application fails and Rule is discharged with no order as to costs.

15. So far as Civil Application No.1567 of 1971 is concerned, it is rejected with no order as to costs.

16. Order accordingly.


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