1. The attention of the learned Judges who made the reference does not appear to have been called to the long catena of decisions in Calcutta and to the decisions to the same effect in Allahabad. Shortly after the coming into force of the Code of 1859 it was decided by Sir Barnes Peacock and Jackson, J.--Beckwith v. Kishto Jeebun Buckshee I.L.R. (1914) Cal. 675 that no special or second appeal lay from a refusal by the lower appellate court to admit fresh evidence under Section 355 of that Code which re-appears as Order XLI Rule 27 of the present Code. The decisions in Mohesh Ghunder Sheet v. Shoshee Mookhee Debia (1866) 6 W.R. 196 Golam Mukdoom v. Mussamut Hafee Zoonissa and Ors. (1867) 7 W.R. 489 Kulpo Singh v. Thakoor Singh and Anr. (1871) 15 W.R. 129 and In the goods of Prem Chand Moonshee : Upendra Mohan Ghose v. Gopal Chandra Ghose I.L.R. (1894) Cal. 484 are to the same effect, as are the decisions of the Allahabad Court in Ram Piari v. Kallu I.L.R. (1900) All. 121 and Durga Prasad v. Jai Narain I.L.R. (1911) All. 379. There are no reported decisions in Madras and Bombay as there must have been if this long line of authorities had ever been questioned in these Courts. It has, I think, long been the practice of all the High Courts not to entertain second appeals from refusals of the lower appellate court to admit fresh evidence under this rule. I am not prepared to depart from this practice and would answer the question in the negative.
2. In my opinion the answer to the reference must be in the negative. The effect of Order 41 Rule 27 Clause (b) is to empower an appellate court to admit additional evidence provided it requires the evidence to enable it to pronounce judgment or for any other substantial, cause. Whether it requires the additional evidence or not is for the appellate court itself to say, and it is not for a superior court to control its discretion, or to say that it ought to have required it, where, as a fact, it did not. I would respectfully adopt the reasoning of Sale, j., in In the goods of Prema Chand Moonshee : Upendra Mohan Ghose v. Gopal Chandra Ghose I.L.R. (1894) Cal. 484 which is in accordance with a long catena of early Calcutta decisions beginning with a judgment of Peacock, C.J., and Jackson, J., reported in Marshall's Reports p. 278. That the word ' requires' in the corresponding Section 568 of the old Code means nothing more than 'needs' or 'finds needful' has been expressly decided by the Privy Council in Kessowji Issur v. Great Indian Peninsular Railway Co. I.L.R. (1907) Bom. 331 and this pronouncement, as it seems to me, concludes the matter if authority were needed.
Sadasiva Aiyar, J.
3. I regret that I have the misfortune to differ from my Lord and Ayling, J., on this reference. It having been now settled in this Court that good grounds for review are also good grounds for the appellate court to allow further evidence to be adduced, the question whether the appellate court exercised its discretion properly in refusing to admit such evidence seems to be clearly a question of law which we are entitled to consider in second appeal.
4. As regards Clause (b) of Order 41 Rule 27, I am clear that 'or for any other substantial cause is not governed by the expression the ' Appellate Court requires.' The 355th section in the old Civil Procedure Code (Act VIII of 1859) from which this Order 41 Rule 27 has come down clearly shows that 'or for any other substantial cause' is an independent ground and is not governed by the words in the first portion of Clause (b), there being no division into clauses in the old Act of 1859, Section 355. It cannot be argued for a moment that if the appellate Court notwithstanding that the condition in Clause (a) has been fulfilled, (namely, the Court from whose decree the appeal is preferred having refused to admit evidence which ought to have been admitted) refuses in appeal to admit such evidence, the second appellate court cannot interfere with that discretion so improperly exercised by the first appellate court. I do not see why when the condition in what I call the third clause, namely, the existence of any other substantial cause, is fulfilled and yet the discretion to admit additional evidence in such a case is wrongly exercised by the first appellate court, the second appellate court should be prevented from interfering. As regards the Allahabad and Calcutta cases, if they meant more than that the discretion given in cases falling under Clause (b) to the first appellate court should not be lightly interfered with by the second appellate court, I respectfully differ from those decisions. Let me put the following illustration. The trial court in a clear case where it ought to have granted a review on the ground of conclusive evidence which was not in the power of a party to produce having been afterwards discovered rejects the application for review--such rejection is not appealable. But this Court has power under its general revisional powers to direct the trial court to accept the application for review. If so, why should the Court be powerless because a second appeal has been preferred from the decision of an appellate court which, in a similarly clear case, refused to exercise its discretion to admit additional evidence, such a case being (as I said) fully analogous to an application for review? Further Section 105 Clause (1) shows that even where an appeal might not lie from an order made by the appellate court (such as an order refusing to admit additional evidence) where the decree of the appellate court itself is appealed against in second appeal, the error in the interlocutory order refusing to admit additional evidence may be set forth as a ground of objection in the memorandum of second appeal.
5. Again suppose that treating the order of a District Court refusing to. admit additional evidence as an independent order, a revision petition had been filed to this Court against that order, I see nothing to prevent us in a clear case from setting aside that order in revision. Why should such a prayer for revision of that order be not embodied as a ground in the memorandum of second appeal.
6. In the result, I agree with Kumaraswami Sastri, J., in saying that this Court has power in second appeal to consider the propriety of the exercise of the discretion of the District Judge as regards the admission of additional evidence though, of course, that discretion would not be interfered with lightly any more than the discretion of a court rejecting a review petition would be lightly interfered with in revision. I think that the power to consider and decide on the question should be affirmed as existing in this Court in Second Appeal.