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Dharmashi and ors. Vs. Patel Kadva Bhada and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 412 of 1964
Judge
Reported inAIR1966Guj302; (1966)7GLR405
ActsCode of Civil Procedure (CPC), 1908 - Sections 115, 568 and 623 - Order 41, Rule 27(1)
AppellantDharmashi and ors.
RespondentPatel Kadva Bhada and ors.
Appellant Advocate Suresh M. Shah, Adv.
Respondent Advocate R.C. Mankad and; P.V. Hathi, Advs.
DispositionRevision allowed
Cases ReferredMunicipal Corporation of Greater Bombay v. Pancham
Excerpt:
.....41 rule 27 (1) of code of civil procedure, 1908 - appellate court permitted additional evidence - revision filed against order - under order 41 rule 27 (1) (b) stage of allowing additional evidence arises only when evidence on record has already been examined and some lacuna or defect in evidence as it stands on record has been found by appellate court - stage of examining record was not reached - appellate court acted with material irregularity - order passed by assistant judge liable to be set aside. - - this record sought to be produced, in my candid opinion, will determine the rights of the parties and the final decision of the appeal could not effectively be given without the aid ofthe official record which shows that the exchange of lands between two 'patis' and how the..........the alleged exchange of lands and exchange of properties. these two applications were heard by the learned assistant judge, rajkot, district gondal, camping at rajkot, and by his judgment and order, dated february 12, 1964, the learned assistant judge allowed the applications and the plaintiff was directed to file his objections on february 17, 1964, and the documents were directed to be exhibited after the objections were received and heard. the present civil revision application has been filed by the heirs of the original plaintiff against this judgment and order of the learned assistant judge.2. it must be made clear at the outset that the hearing of the appeal had not at all commenced before the learned assistant judge and the learned assistant judge had taken up first the question.....
Judgment:
ORDER

1. This Civil Revision Application arises under the following circumstances:

A suit was filed in the Court of the Civil Judge, Jr. Dn., Rajkot, in connection with certain property. The parties at the trial of that suit rested content with leading oral evidence only and no documentary evidence was led. The defendants pleaded that on an exchange of lands which had come about through certain official proceedings of the then Gondal State, the property in question had come to the ancestors of the defendants. No attempt appears to have been made by the parties to lead any evidence regarding the records of Gondal State before the learned trial Judge. The learned trial Judge decreed the plaintiff's suit purely on appreciation of the oral evidence that had been led before him. Against this decision, the defendants went in appeal and two applications were presented by different defendants, one being Ex. 11 before the appellate Court and the other being Ex. 14 before the appellate Court, asking the appellate Court to take on record documentary evidence in the shape of certified copies of the records of the previous Gondal State and of the Political Agency in connection with the alleged exchange of lands and exchange of properties. These two applications were heard by the learned Assistant Judge, Rajkot, District Gondal, camping at Rajkot, and by his judgment and order, dated February 12, 1964, the learned Assistant Judge allowed the applications and the plaintiff was directed to file his objections on February 17, 1964, and the documents were directed to be exhibited after the objections were received and heard. The present Civil Revision Application has been filed by the heirs of the original plaintiff against this judgment and order of the learned Assistant Judge.

2. It must be made clear at the outset that the hearing of the appeal had not at all commenced before the learned Assistant Judge and the learned Assistant Judge had taken up first the question whether the additional evidence should be admitted or not. In the course of his judgment the learned Assistant Judge has observed as follows:

'The decision given by the learned Judge has been solely based on the oral evidence of the parties and which evidence, to my mind, could not be construed as sufficient and cogent one to give final decision of the pleas raised by the parties. This record sought to be produced, in my candid opinion, will determine the rights of the parties and the final decision of the appeal could not effectively be given without the aid ofthe official record which shows that the exchange of lands between two 'Patis' and how the exchange of the land in question had taken place.'

With respect to the learned Judge, he was putting the cart before the horse and without appreciating the entire material on record while disposing of the application to lead additional evidence, he has already expressed an opinion that the rights of the parties would be governed by what is shown in the official record without appreciating the entire evidence, oral evidence led before the trial Court and the documentary evidence which he was admitting before the appellate Court, into account.

3. It is clear that on the facts of this particular case, the learned Assistant Judge could only exercise his cowers under Order 41, Rule 27, Sub-rule (1)(b) of the Civil Procedure Code. That provision is as follows:

'The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.'

The question that I have to consider in this Civil Revision Application is at what stage should the Appellate Court decide whether additional evidence should be permitted to be led or not.

4. In the well-known case of Kessowji Issur v. G.I.P. Rly. Co., (1907) ILR 31 Bom 381 (PC), the Privy Council construed the provisions of Section 568 of the Code of Civil Procedure, 1882. The language of that section was the same as the language of Order 47, Rule 1(b), except that instead of the words: 'for any other substantial cause' which occur in Order 47, Rule 1(b), the words 'for any other substantial reason' were used. Otherwise the language of the two provisions is the same. Dealing with this provision, their Lordships of the Privy Council observed at page 390 of the report as follows:--

'..... it appears to their Lordships that the Appellate Court had no jurisdiction to admit this evidence, that it was wrongly admitted and does not form part of the evidence in this appeal. It must, therefore, be disregarded.'

It has further been observed that the legitimate occasion for Section 368 C. P C. is when on examining the evidence as it stands some inherent lacuna or defect becomes apparent, and not where a discovery is made outside the Court of fresh evidence and the application is made to import it; that is the subject of the separate enactment in Section 623. It is, therefore, clear that according to the Privy Council, if the Appellate Court chooses to exercise its discretion to admit additional evidence on record, and on examining the evidence as it stands, unless it finds that some inherent lacuna or defect has become apparent, it has no jurisdiction to admit additional evidence and if any such additional evidence is admitted, it must be disregarded in deciding the matter.

5. In a subsequent decision of the Privy Council in Parsotim v. Lal Mohar , the provisions of O. 41, Rule 27(1)(b) C. P. C. were examined and it has been observed at page 257 of the report (Ind. App.): (at pp. 148, 149 of AIR) as follow:--

'Under Rule 27(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. This is the plain grammatical reading of the sub-clause. The ligitimate 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' This is laid down in the most positive terms by Lord Robertson in (1907) 34 Ind. App. 115 (PC). He was dealing with the words of Section 568 of the Code of 1882, but they are substantially the same as those of Order XLI. Rule 27, of the present Code. 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 the 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 under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified '

6. In Arjan Singh v. Kartar Singh : [1951]2SCR258 , the Supreme Court considered the decisions of the Privy Council in and has observed as follows:

'The discretion given to the appellate Court by Order 41, Rule 27 to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in that rule. If the additional evidence is allowed to be adduced contrary to the principles governing the reception of such evidence, it will be a case of improper exercise of discretion and the additional evidence so brought on the record wilt have to be ignored and the case decided as if it is non-existent.

The legitimate occasion for the application of Order 41, Rule 27 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. The true test, therefore, is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced.'

7. The same view was again taken by the Supreme Court in Municipal Corporation of Greater Bombay v. Pancham : [1965]1SCR542 . The judgment of the Supreme Court was delivered by Mudholkar J. and in para 9 atpage 1011 of the report, Mudholkar J. has held as follows:--

'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 ft 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 where 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.'

In view of these pronouncements of the Privy Council and the Supreme Court, it is obvious that the learned Assistant Judge was in error when without entering into the evidence, without appreciating the evidence as it stood and without coming to the conclusion that there was some lacuna on the evidence us it stood, he decided merely on the applications, Exs. 11 and 14 to allow additional evidence to be led.

8. The question then arises whether under Section 115 C. P. C., the High Court can exercise its powers. Under Order 41, Rule 27(1)(b) C. P. C., the stage of allowing additional evidence arises only when the evidence on record has already been examined and some lacuna or defect in the evidence as it stands on the record has been found by the appellate Court, The stage of examining the record was not reached in the instant case when the learned Assistant Judge ordered that additional evidence should he taken on record. In the exercise of the discretion, which was undoubtedly vested in him, the learned appellate Judge has acted with material irregularity; and if this irregularity were to be permitted to continue, the result would be that at all subsequent stages, the additional evidence which has been permitted, would have to be disregarded. In order to see that neither party suffers because of this irregularity, I set aside the order passed by the learned Assistant Judge under Section 115(c) C. P. C. and direct that the applications Exs. 11 and 14 in the lower appellate Court should be heard along with the appeal and in the light of the observations that I have made in this judgment, if it is thought proper and necessary to admit additional evidence the lower appellate Court may still do so at that stage.

9. In the result, this Civil Revision Application is allowed. The order passed by thelearned Assistant judge is set aside. The rule ismade absolute. The costs of this Civil RevisionApplication to be the costs in the appeal beforethe learned Assistant Judge.


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