Venkatasubba Rao, J.
1. The District Judge of Kurnool has made an order, admitting at the instance of the 1st plaintiff, additional evidence while hearing an appeal and the 1st defendant attacks the correctness of this order, in the Civil Revision Petition before me. The point in controversy is : Had the District Judge jurisdiction to make the order in question? Order 41, Rule 27, Civil Procedure Code, deals with production of additional evidence in an Appellate Court. The material portion runs thus:
27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court.
(b) 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 Appellate Court may allow such evidence or document to be produced, or witness to be examined.
2. The argument of Mr. Seshachari, the learned vakil for the 1st defendant, is, that under this provision of law, a suitor cannot apply for admission of additional evidence, but that its provisions can be invoked, only when the Appellate Court itself discovers some inherent lacuna or defect and requires evidence to fill up the gap or remedy the defect. In other words, that the Appellate Court can act under this section of its own motion and not at the instance of the parties and reliance is placed upon the decision of the Judicial Committee in Kesswaji Issur v. G.I.P. Ry. (1907) 31 Bom. 381. It is no doubt true that some passages in the judgment in this case, lend apparent support to this argument; the observation that is most relied upon, being the following:
This is important, because the legitimate occasion for Section 568 is when, on examining the evidence as it stands, some inherent lacuna or direct becomes apparent, 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.
3. Section 623, referred to above, is the section relating to review of judgments and orders. I understand the argument to be that a party wishing to give additional evidence must be able to bring himself, within the provisions relating to review and that his proper procedure is to apply to the trial Court for review and not to apply for admission of additional evidence to the Court which hears an appeal from the decision.
4. According to this contention, the two sets of rules one relating to review and the other relating to admission of additional evidence in appeal, are mutually exclusive. If the party wishes to have additional evidence taken, he must take advantage of the review provisions; but the Court acting ex mero motu and not at the instance of the parties can supply deficiencies, by taking evidence under Order 41, Rule 27.
5. I do not think that this position is tenable, in the face of the most recent pronouncement of the Judicial Committee in Indrajit Pratap Sahi v. Amar Singh A.I.R. 1923 P.C. 128. An argument similar to the one now advanced was urged before the Board and after a very full consideration, their Lordships refused to give effect to the contention. The case in Kesswaji Issur v. G.I.P. Ry. (1907) 31 Bom. 381 was relied on before the Board as it has been before me and indeed the High Court of Patna decided, on the authority of the ruling that it had no jurisdiction to receive additional evidence; in appeal, on the application of the parties.
6. The Board, in reversing the decision of the High Court, pointed out that the earlier case was peculiar in its character and after analysing the facts and circumstances of that decision clearly laid down the rule that an Appellate Court has power to receive additional evidence in appeal at the instance of parties. The law has been, stated in such unmistakable terms that the matter now admits of no doubt and I am quite clear that the contention of the petitioner must fail.
7. A second argument has been advanced, namely, that an order for admission of additional evidence cannot be made upon a special or preliminary application but that the proper occasion for it is when the appeal is heard, and the evidence is examined by the Appellate Court. In this case, I am satisfied that the District Judge has made the order in question, in the, course of the hearing of the appeal and. has not dealt with the application as-independent of and detached from the. appeal.
8. On this short ground this argument fails; but I am prepared to hold that there, is no warrant for the position that when the application is by the party to receive, additional evidence, the Appellate Court cannot make an order upon application without hearing the appeal.
9. Here again, the case, relied on by the petitioner, is Kesswaji Issur v. G.I.P. Ry. (1907) 31 Bom. 381. But it will be seen from the observations of the Lords of the Judicial Committee that the limitation referred to above applies only to cases, where the Court of its own motion makes an order for admission of additional evidence. The reason is obvious. The Court cannot make up its mind to receive additional evidence acting; ex mero motu, without going into the evidence and becoming satisfied that there is a lacuna or defect. It is a power to be exercised by the Court on its own initiative and that function can be performed, only when the Court being appraised of all the fact appearing on the record sees reason to think that there is a gap to be filled up or a defect to be remedied. If a party makes the application, entirely different considerations apply; and I do not see why the application should not be dealt with, independent of the appeal, although in most cases, it would no doubt be desirable to hear the application and the appeal together even then, if possible. Even then, it may not become necessary to hear the appeal fully and the Judge may make up his mind to allow or reject the application very early, during the hearing of the appeal.
10. It is then said that the District Judge finds that the plaintiff was negligent and that therefore he ought not to have allowed the application. The rule vests the discretion in the appellate Judge and I am not satisfied that in this case, the discretion has not been judicially exercised. In complying with Sub-Rule 2, of Order 27, the learned Judge states his reasons very fully for the step he has taken. A case has not been made out for the exercise by the High Court of its revisional jurisdiction and I am therefore not prepared to interfere with the order of the learned Judge.
11. There only remains one other matter to be dealt with D.W. I did not offer himself as a witness in the trial Court. A statement made by him previous to the suit is now allowed to be admitted as additional evidence. The plaintiffs wish to rely upon it as an admission. The defendant may justly complain that he must be allowed not only to explain his statement, but also to adduce additional evidence, on account of the turn the events have taken. Similarly, D.Ws. 6 and 7 were not examined in regard to the relationship at all before the trial Court. It is now proposed to cross-examine them with reference to some previous statements made by them on this subject and the District Judge has given permission. This may also render necessary additional evidence being given on the part of the defendant. Very great indulgence has been shown to the plaintiff with the result that in some respects a fresh trial of the issue may be demanded and rightly by the petitioner. These are matters, which I must leave to the Appellate Court and I have no doubt that on a proper case being made out the petitioner will be given necessary facilities.
12. It has been said that the District Judge in his order has shown that he has prejudged the matter and all but given a finding in favour of the plaintiff on the question of the pedigree. But it is not however necessary to order a transfer of the appeal, as in the usual course. I am assured that the appeal will be heard by a different Judge and not by the Judge, who has made the order in question.
13. As the District Judge points out in his order, the plaintiff has been guilty of considerable negligence.
14. While dismissing the Civil Revision Petition, I direct that he do pay to the 1st defendant the costs of the Civil Revision Petition as well as all the coats occasioned in the lower Court, by the taking of the additional evidence in any event and irrespective of the result of the appeal.