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Srinivasachariar Vs. Rangammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1895)ILR18Mad94
AppellantSrinivasachariar
RespondentRangammal and ors.
Cases ReferredMohesh Chunder Doss v. Madhub Chunder Sirdar
Excerpt:
civil procedure code - act xiv of 1882, sections 171, 568 and 582--remand-direction by appellate court for the taking of further evidence. - - thereupon, the district judge considered it desirable that further evidence should be taken as to the handwriting of the two endorsements of payments and that there was a large number of disinterested witnesses well acquainted with the hand-writing of the deceased tirumala thatha chariar, who made the endorsements......but for the endorsements on the hypothecation bond a, the suit would be barred by limitation. the district judge concurs in the finding of the district munsif on remand that the endorsements are not genuine. it is contended, on behalf of the appellant that the finding is illegal, as it rests upon evidence improperly admitted on appeal. it is urged that the district judge was in error in remanding the case for further evidence and that the remand is illegal. the third issue recorded in this suit was whether the claim was barred by limitation; and upon the evidence originally adduced by the parties with reference to that issue, the district munsif came to the conclusion that the endorsements were genuine and that the suit was not barred by limitation. on appeal, however, defendants.....
Judgment:

Muttusami Ayyar, J.

1. It is conceded that but for the endorsements on the hypothecation bond A, the suit would be barred by limitation. The District Judge concurs in the finding of the District Munsif on remand that the endorsements are not genuine. It is contended, on behalf of the appellant that the finding is illegal, as it rests upon evidence improperly admitted on appeal. It is urged that the District Judge was in error in remanding the case for further evidence and that the remand is illegal. The third issue recorded in this suit was whether the claim was barred by limitation; and upon the evidence originally adduced by the parties with reference to that issue, the District Munsif came to the conclusion that the endorsements were genuine and that the suit was not barred by limitation. On appeal, however, defendants objected to the finding. Thereupon, the District Judge considered it desirable that further evidence should be taken as to the handwriting of the two endorsements of payments and that there was a large number of disinterested witnesses well acquainted with the hand-writing of the deceased Tirumala Thatha Chariar, who made the endorsements. On this view, he remanded the suit for further evidence being taken, and this procedure on the part of the District Judge is impugned as illegal. Though the order purports to remand the suit, there was no remand within the meaning of Section 562 of the Civil Procedure Code. In substance, it was only an order that further evidence be taken on the third issue and that such evidence be returned to the District Court with the opinion of the District Munsif as to its effect on the question of the handwriting in which the endorsements are made. Our decision must, therefore, depend on the construction we put upon Section 568, Civil Procedure Code, and its scope. The first principle to be remembered in connection with that section is that the production of additional evidence in appeal is not a matter of right and the section accordingly confers a discretionary power on the Appellate Court. The general rule is that the Appellate Court ought to decide the appeal on those materials only which the parties think proper to furnish in the Court of First Instance and not on substantially new evidence introduced on appeal to mend the case of either party.

2. The first exception mentioned in Section 568 is where the Court of First Instance refuses to admit evidence which ought to have been admitted. This is founded on the principle that neither party should be improperly precluded from putting before the Court such materials as he desires to furnish for decision, provided that they are proper materials.

3. The second exception mentioned in Section 568 is when the Appellate Court requires any document produced or any witness examined to enable it to pronounce judgment or for any other substantial cause. This is a discretionary power conferred upon the Appellate Courts in the interests of justice. With reference to it Lord Westbury observes that the power to take fresh evidence is a power which may be very wholesome, but adds that the reasons for exercising the power should always be recorded. This is necessary to see whether the discretionary power is carefully exercised and new evidence is not lightly introduced into the record. Lord Westbury further remarks that the power should be very sparingly exercised, because when it is not done at the instance of the parties but at the suggestion of the Court itself, witnesses may be called who are not the witnesses the parties themselves would have thought fit to call, and it is possible that the new original enquiry by the Court may be itself imperfect and not sufficiently extensive to answer the purposes, of justice. Whilst pointing out this danger likely to arise from the Appellate Court lightly introducing new evidence, the Judicial Committee say that no general rule can be laid down, whilst Lord Westbury considers that it is a very wholesome power if exercised cautiously and within proper limits Gunga Gobind Mundul v. The Collector of the Twenty-four Pergunnahs 11 M.I.A. 345 As regards the second case mentioned in Section 568, it was held with reference to Section 355 of Act VIII of 1859 that the Appellate Court might take fresh evidence where the evidence has been taken so imperfectly by the Court of First Instance that the Lower Appellate Court cannot pass a satisfactory judgment, Joog Maya Debia v. Ramchunder Chatterjee 10 W.R. 379; Mohesh Chunder Doss v. Madhub Chunder Sirdar 13 W.R. 85 In the case before us the new evidence taken was, in my opinion, taken in the proper exercise of the discretion vested in the Appellate Court. The enquiry as to the genuineness of the endorsements was so imperfect and incomplete that the Judge found it difficult to proceed to judgment without the evidence of several disinterested persons who were acquainted with the handwriting of the person, who was alleged to have made the endorsements. The result was that in the light of the new evidence, both Courts came to the conclusion that the endorsements were forged. The new evidence ordered to be taken was ordered to cure a defect in the enquiry made by the Court of First Instance, and to enable the Court to value the existing evidence in the light of disinterested evidence. There is nothing to show that it was one-sided or not sufficiently extensive for purposes of justice.

4. Again, as for the appellant's contention that Exhibits III to XI are not proved, it must be observed that the District Munsif refers to the evidence in detail and names the witnesses who prove them. This second appeal fails and I would dismiss it with costs.

Shephard, J.

5. On the first hearing of the appeal the District Judge, by order, dated 2nd December 1891, remanded the case to the District Munsif for further evidence with a direction to the District Munsif to return such evidence together with his opinion on the question of the handwriting of the endorsements. The reason given by him for taking this course was that, in his opinion, there must be in existence papers signed by the alleged writer of the endorsements and witnesses who would be able to speak to his writing.

6. It is quite clear that the case was not one in which a remand, as that term is used in the code, was legally possible--nor in fact did the Judge purport to remand the case in the manner prescribed by Section 562. Again, it is clear that Section 566 cannot be called in aid, for there was no omission on the part of the District Munsif to determine any question of fact or frame or try any issue. The only provision of this part of the code which can be indicated as justifying the order of the Judge is that contained in Section 568, and that section does not authorize the Appellate Court to call for an opinion on the new evidence. It was contended that the circumstances were not such as to justify the application of that section at all and that, at any rate, the District Judge who ultimately disposed of the appeal ought not to have treated the District Munsif's opinion given in pursuance of the order of the Judge as a legal finding or judgment. On the respondents' behalf reliance was placed on Clause (b) of Section 568, and it was said that if the examination of further witnesses was not required to enable the Appellate Court to pronounce judgment, there was at any rate 'other substantial cause' justifying the order of the Judge. We were also referred to the provisions of chapter XIV and especially Section 171 which enables the Court, if at any time it thinks necessary, to cause any person to be examined as a witness, and to the provisions of Section 582 giving the Appellate Court the same powers and imposing upon it the same duties as are conferred and imposed by the code on Courts of original jurisdiction. Seeing that by Section 568 special provision is made for particular cases in which Appellate Courts may require additional evidence, I think it is impossible to hold that an Appellate Court should in such cases exercise the general powers given by Section 171. The two sections must be read together and the conditions imposed by the later section must not be disregarded. I have felt great doubt on the question whether, in the circumstances of the present case, the act of the Judge in permitting fresh evidence to be taken could be justified. According, however, to the cases decided on this Section 568 and the corresponding section of the code of 1859, it must be taken that the law does allow a discretion to the Appellate Court and that it cannot be said to be illegal to admit evidence as was done in the present case. It cannot be said that the Judge gave no reasons for this order. I agree with the conclusion at which Sir T. Muttusami Ayyar has arrived.


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