1. The substantial question argued in this Second Appeal is whether the District Judge was right in allowing fresh evidence to be adduced at the hearing of the appeal.
2. It is contended for the appellant that the District Judge was wrong in so doing and that his procedure was not in accordance with Section 568 of the Code of Civil Procedure (Act XIV of 1882), as explained by the Privy Council in Kessowji Issur v. G.I.P. Railway Company (1907) 31 Bom. 381.
3. I am unable to accept this contention. The circumstances under which the additional evidence in that case was admitted were wholly different from the circumstances in the present case. In the present case, the District Judge after bearing the arguments by the pleaders on both sides observed that the District Munsif had not sufficiently considered the olugu account (Exhibit I) that he had, in fact, misunderstood it, that only part of it was filed and that certain documents which the appellant before him then produced would show that the District Munsif's explanation of it could not be correct. The District Judge also did not think that there could be two different tenures (pannai and kudi lands) in one and the same survey number, and he desired the remainder of the olugu account to be filed in order to see whether such entries could be found in other numbers entered in that account. It seems to me to be clear that the District Judge was in doubt as to whether there could be pannai and kudi lands in the same number and required farther evidence in order to clear up this point. He also required farther evidence to test the District Munsif's explanation of the effect of certain entries in the olugu account, which explanation seemed to the District Judge to be wrong. He, therefore, needed or required the further evidence mentioned in his order to be produced in order to enable him to properly decide the appeal before him.
4. There was, in my opinion, 'substantial cause' for admitting the further evidence within the meaning of Section 563 of the Civil Procedure Code, 1882. I do not think that the words 'or for any other substantial cause' in that section should be construed in the narrow sense suggested by the doctrine of ejusdem generis, so as, in effect, to confine them to causes of the same kind as those stated in the earlier part of the section.
5. I would, therefore, confirm the decree of the District Judge and dismiss the Second Appeal with costs.
Sadasiva Ayyar, J.
6. The Lower Appellate Court reversed the District Munsif's judgment and dismissed the plaintiff's suit, mainly on the strength of some additional evidence which the Appellate Court received during the hearing of the appeal. The only arguable ground in this Second Appeal is whether the District Court was so entitled in law to take and consider such additional evidence.
7. It has been held by the Privy Council in Kessowji Issur v. G.I.P. Railway Company (1907) 31 Bom. 381 that Appellate Courts have no jurisdiction to allow parties to adduce further evidence unless Section 568, Civil Procedure Coda, 1882 (Order XLI, Rule 27, Civil Procedure Code, 1908) allows it. That section, as explained by the Privy Council, allows the Appellate Court to admit such further evidence if (a) the First Court had improperly refused to admit evidence, or if (6) the Appellate Court, on looking into the evidence as it stands, finds some inherent lacuna or defect which has to be filled up and supplied by fresh evidence before the Appellate Court finds itself in a position 'to pronounce judgment', or if (c) there is any other substantial cause, and if in each case the reasons for admitting further evidence are recorded.
8. In Kessowji Issur v. G.I.P. Railway Company I.L.R. (1907) 31 Bom. 381, their Lordships of the Privy Council found (a) that the First Court had not improperly refused to admit evidence (b) that the Appellate Court before looking into the evidence as it stood, had admitted further evidence on a preliminary application (e) that there was no other substantial cause for admitting fresh evidence as the Original Court had on an application for review, refused to grant review or to take the further evidence offered... and (d) that the Appellate Court recorded no reasons before admitting such further evidence.
9. In the present case, I am inclined to hold on a careful perusal of the record that the District Court felt such serious doubts about the difficult and unusual tenure on which the disputed land No. 76 was held (partly pannai and partly kudi) that it directed and authorized further evidence to be received on both sides. The learned District Judge frankly says in one portion of his judgment that it appeared to him 'improbable at first that the same field would contain pannai and kudi land', and that he had to change his opinion on further arguments. The expression 'to enable it (the Appellate Court) to pronounce judgment' cannot surely mean 'pronounce some judgment whether or not such judgment reasonably satisfied the mind and conscience of the Court pronouncing it that it has done its duty to find out the truth and mete out justice'. In the Privy Council case in Kessowji Issur v. G.I.P. Railway Company I.L.R.(1907) 31 Bom. 381, the Appellate Court allowed further evidence to be adduced without the learned Judges applying their minds to the question whether they required further evidence to pronounce a satisfactory judgment and hence their Lordships of the Privy Council disallowed the procedure.
10. Even supposing that I am wrong in my view as to the meaning of the phrase 'to enable it to pronounce judgment', see Subba Naidu v. Ethirajammal : (1912)22MLJ14 , where two learned Judges of this Court have differed as to the meaning of this Clause (b) of Section 568. There is the other phrase 'for any other substantial cause' in the same Clause (b) which enables the Appellate Court to receive further evidence. I am unable to adopt the doctrine of ejusdem generis in construing such a wide expression 'any other substantial cause'. Original Courts have, in order to do justice (which is the main object for which all courts exist), the power to send for and inspect documents on the records of any court of its own motion (Order 13, Rule 10, Civil Procedure Code, 1908): they may ask 'any person present in court' to give evidence or produce any document then in his possession (Order 16, Rule 7), and may put any questions, relevant or irrelevant, to witnesses, (Indian Evidence Act, Section 165). The new Section 151 of the Civil Procedure Code, 1908, which merely gives express sanction to what has always been implied, namely, to the doctrine that Courts of justice possess inherent powers to do all things necessary to mete out justice provided they do not exceed their jurisdiction might also be referred to in this connection. An Original Court can reconsider its own judgment on review on fresh evidence which it might allow a party to adduce if such evidence was not within his power to produce at the original hearing. An Appellate Court has all the powers of an Original Court to do justice (Order 41, Rule 33).
11. In the case before the Privy Council, the Original Court refused an application for review of its judgment on further evidence offered and yet the Appellate Court (without assigning reasons) admitted fresh evidence and hence the Privy Council criticized the Appellate Court's procedure. But, surely their Lordships did not mean to give lesser powers to an Appellate Court to admit fresh evidence than the Original Court would have had in the case of a review. The Original Court could admit fresh evidence on a review, subject only to certain conditions and for certain substantial causes. The Appellate Court is, on principle, entitled to do so for the same substantial causes. If the Appellate Court after it pronounces a judgment could review its own decision on fresh evidence offered after satisfying the stringent conditions imposed on the party applying for a review, why should it not do so during the first trial itself of the appeal?
12. In the present case, I am of opinion that the Lower Court admitted additional evidence for such substantial causes as well justify a review by the Original Court (see the allegations in the affidavit put in by the plaintiff before the hearing of the appeal in the Lower Court explaining why he was unable to produce the additional evidence, Exhibits 2 to 5, before). The District Judge has given reasons in his longer order of 30th September 1909 for admitting the further evidence though not in the shorter order of the same data endorsed on the defendant's application. I would, therefore, dismiss the Second Appeal with costs.