THAKKAR ANANDJI PARSHOTTAM Vs. DHARAMSHI KALABHAI

JUDGEMENT

(1.) 6 It will be worthwhile to consider the civil application No. 1328 of 1971 given by the appellants before dealing with the question on merits. According to the appellants except respondent No. 3 and the members of his family other respondents had not come to India until now. It is also stated that all the respondents except respondent No. 3 have accepted the citizenship of Africa and they are already settled there. It was further urged that the respondents had kept two flats in Bombay which were lying vacant and therefore they did not require the suit premises at Visavadar. The pertinent question which arises for my consideration is whether sitting in a second appeal it would be open to me to take into consideration the subsequent development which has taken place after the decree was passed by the first appellate court. I entirely agree with the learned advocate for the respondents that by considering this application virtually I would permit the appellants to lead additional evidence before this court which is not permissible in a second appeal. In second appeal No. 756 of 1960 with civil applications Nos. 184A/1960 1258 and 1259/1964 decided on 17/23/24-2-1965 (State of Bombay v. Vora Ibrahim Akbarali) Divan J. after taking into consideration several decisions of the Bombay Calcutta and Madras High Courts observed

(2.) Mr. R. N. Shah also relied on the unreported rulings of V. R. Shah 3 in second appeal No. 395 of 1964 decided on 22nd September 1970 (Purshottam Damji v. Ladkubai Jiwandas) and Sompura J. in second appeal No. 234 of 1964 decided on 19th November 1968 (Vithaldas Shivshankar v. Jamnashankar & Ors.) It may be noted that in those cases the question regarding the power of the High Court to permit additional evidence under rule 27 order 41 C. P. C. in a second appeal did not arise and no such point appears to have been canvassed before them. A perusal of these cases shows that on account of subsequent events additional evidence was permitted by the lower appellate courts. Under these circumstances these rulings cannot help the appellants.

(3.) The next question which arises for my consideration is whether the order passed by the learned District Judge permitting the present respondents to lead additional evidence was invalid and illegal as alleged by Mr. Shah. Mr. Shah referred to rule 27 order 41 C.P.C. and urged that unless the case of the plaintiffs was covered by the provisions of order 41 rule 27 C.P.C. it would not be open to the court to permit the plaintiffs to lead additional evidence. He urged that the court while permitting the plaintiffs to lead additional evidence did not record its reasons for doing so. He submitted that it was mandatory for the court to give reasons before permitting the plaintiffs to lead additional evidence. Mr. Shah urged that a perusal of the application for additional evidence given by the plaintiffs in the lower court does not indicate that the contentions raised in that application would be covered by any of the clauses of rule 27 order 41 C.P.C. He therefore urged that unless the relief claimed by the plaintiffs in their application was covered by the provisions of rule 27 order 41 C.P.C. it would not be open to the court to permit the plaintiffs to lead additional evidence and even if the learned advocate for the defendants had given his consent that would be of no avail and the order passed by the court in contravention of rule 27 order 41 would be clearly illegal. In support of his say he referred to the case of The Municipal Corporation of Greater Bombay v. Lala Pancham and others A.I.R. 1968 S.C. 1008 wherein it was observed