CHUDASMA JASUBHAI MANUBHA Vs. CHUDASMA RAISINH BAPUBHA

JUDGEMENT

(1.) IN MADAMANCHI RAMAPPA AND ANOTHER V. MUTHALURU BOJJAPPA A.I.R. 1963 S. C. 1633. Mr. Chhatrapati has filed on behalf of the plaintiffs an affidavit to which are annexed copies of certain documents. He prays far taking additional evidence on record. According to him that evidence shows that what the defendants have stated in their evidence is false. The question which has arisen is whether it is open to this Court in a Second Appeal to take additional evidence. On the question whether additional evidence can be taken or not in a second Appeal there are two schools of thought. IN P. V. SUBBA RAJA V. S. S. NARAYANA RAJA AND OTHERS A. I. R. 1954 MADRAS 1074 Mr. Justice Krishnaswami Nayudu after having reviewed a number of decisions has held that the circumstances under which a second appellate Court may determine an issue of fact are limited to the conditions arising under sec. 103 which makes the position clear thAt so far as evidence is concerned on which an issue of fact may be determined the evidence on record must be sufficient to enable the High Court to decide the question of fact. According to him it necessarily implies that it as ordinarily not competent to the High Court in a Second Appeal to consider any other evidence excepting the evidence on record. Therefore the second appellate Court cannot admit evidence and give its own decision on a question of fact. The provisions of sec. 103 are sufficiently clear to exclude the operation of Order 47 Rule 27 and their applicability to appeals filed under Order 42 Civil Procedure Code. Every provision in Order 41 that does not automatically apply to a proceeding in second appeal by virtue of Order 42 Rule I but only such provisions as may reasonably be applied having in view the provisions of secs. 100 and 103 and the limited scope of the jurisdiction of the second appellate Court in matters affecting questions of fact. According to him therefore the proper view to be taken is that it is not competent to admit additional evidence in a second appeal. The second school of thought is represented by the decision of Andhra Pradesh High Court in VENKU REDDI V. PICHI REDDI AND OTHERS A.I.R. 1956 ANDHRA 250. Mr. Justice Chandra Reddy has taken the view therein that there is nothing either in sec. 103 or in Order 41 Rule 27 Civil Procedure Code which excludes the applicability of the latter provision to second appeals. The terms of Rule 27 are general in application and in an appropriate case it is open to the High Court in a second appeal to admit additional evidence. IN RAMCHANDRA PANDURANG SATHE V. KRISHNAJI VITHAL JOSHI (1904) INDIAN LAW REPORTS 28 BOMBAY 4 it has been held by a Division Bench of the High Court of Bombay that if on coming to the High Court under second appeal it is discovered that there is evidence which ought to have been placed before the lower Courts the proper practiced to pursue is to allow the second appeal to be withdrawn in order that a review petition may be presented to the lower Appellate Court. This decision refers with approval to the earlier decision of the High Court of Bombay in NANABHAI VALLABHDAS HARIBHAI V. NATHABHAI (1872) 9 BOMBAY HIGH COURT REPORTS 89. IN SUMANLAL BHAGWANDAS KAPADIA V. NAGINLAL BHAGWANDAS KAPADIA 8 G. L. R. 386 it has been held by this Court that there is no justification for the High Court to allow additional evidence in a second appeal for the purpose of filling in the lacuna in the evidence since the High Court in a Second Appeal is required only to examine whether the impugned decree is in accordance with law or not. No additional evidence can be taken which would involve retrial and re-appreciation of evidence. If the case falls under Order 41 Rule 27 of the Civil Procedure Code then different considerations may arise. IN AMBABEN WD/O. ANANDJI PARASHOTTAMDAS GANATRA AND OTHERS V. THAKKAR GORDHANDAS DHARAMSHI AND OTHERS (1971) I. L. R. 12 GUJARAT 1165 it has been held by this Court that it is not open to the High Court in a Second Appeal to consider the subsequent events and to allow additional evidence. It has been further held that since there is a specific provision made by the legislature in that behalf the provisions of sec. 151 of the Code of Civil Procedure cannot be invoked. A similar question arose before Divan J. (as he then was) in Second Appeal No. 756 of 1960 decided by him on 17th 23 and 24th February 1965 After having reviewed a number of decisions on the question he has taken the view that additional evidence cannot be taken in a second Appeal and that the decree of the lower appellate Court can be attacked in a Second Appeal only on any of the grounds set out in sec.100 of the Civil Procedure Code. Mr. Chhatrapati has invited my attention to certain other decisions also. IN LAXMINARAYAN DEEPCHAND MAHESHWARI V. BHIKU PUNJAJI LEWA 76 B. L. R. 83 the High Court at Bombay has taken the view that it is open to the High Court in a second appeal to admit additional evidence under Order 41 Rule 27 of the Civil Procedure Code 1908 if the conditions laid down in that rule are satisfied. He has invited my attention to the decision of Privy Council in INDRAJIT V. AMAR SINGH 25 B. L R. 1259 It has been held in that case that under Order 41 Rule 27 of the Civil Procedure Code the jurisdiction of an appellate Court to admit additional evidence is not limited to cases where the Court itself discovers some lacuna or defect and requires evidence to enable it to pronounce its judgment. A suitor is entitled for any substantial cause to apply to the Court for the admission of further evidence and the Court has a discretion in the matter. The principle laid down by Privy Council in that decision is not applicable to Second Appeals because the facts of the case clearly show that the High Court at Bombay had refused to take additional evidence in a First Appeal. IN a First Appeal the High Court decides on facts and is therefore entitled to review the evidence and to record its conclusion whether the finding recorded by the trial Court is a finding which can be supported on evidence. Therefore the question whether additional evidence can be admitted in a second appeal or not does not stand on par with the question whether additional evidence can be admitted in a First Appeal. IN both cases different considerations prevail. The next decision to which my attention has been invited is in ARJAN SINGH V. KARTAR SINGH and OTHERS A. I. R. 1951 SUPREME COURT 193 IN that decision it has been held that a finding of fact however erroneous cannot be challenged in a second appeal. The principle laid down in that decision has no application to the facts of the case because the Supreme Court has observed that where the first appellate Court admits additional evidence before examination of the evidence on record and consequently before reaching a decision that the evidence as it stands discloses a lacuna which the Court requires to be filled in for pronouncing its judgment the appellate Court is not justified in admitting the additional evidence. That is not the case here. It has also been been observed that if there is any lecuna or defect which becomes apparent to the Court of appeal then whether the additional evidence should be admitted or not is to be decided in the light of the fact whether the appellate Court is able to pronounce the judgment on the materials before it without taking into consideration the additional evidence sought to be produced. That was also the case where additional evidence was sought to be produced in a First Appeal which is to be decided not only on law but on facts also. IN K. VENKATARAMIAH V. A. SEETHARAMA REDDY AND OTHERS A.I.R. 1963 S.C. 1526 the Supreme Court has observed that under Order 41 Rule 27 the appellate Court has power to allow additional evidence not only if it requires such evidence to enable it to pronounce its judgment but also for any other substantial cause. The Supreme Court has further observed that the requirement by the Court of additional evidence means that it requires additional evidence to pronounce its judgment in the interests of justice in order that nothing may remain obscure and that it may pronounce its judgment in a more satisfactory manner. That was also a case where an attempt was made to produce additional evidence in a First Appeal before the High Court. It cannot govern the case where additional evidence is sought to be produced in a second appeal. The last decision to which Mr. Chhatrapati has invited my attention is in THE MUNICIPAL CORPORATION OF GREATER BOMBAY V. LALA PANCHAM AND OTHERS A.I.R. 1965 SUPREME COURT 1008. It has been held in that decision that under Order 41 Rule 27 the appellate Court has power to allow a document to be produced and a witness to be examined. However it has been further observed that the requirement of the appellate Court must be limited to those cases where it finds it necessary to obtain such evidence for enabling it to pronounce its judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce its judgment. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing its judgment in a particular way. IN other words it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. IN that case the plaintiffs had instituted a suit in the City Civil Court at Bombay and First Appeal from the decision of that Court was taken to the High Court of Bombay. The question whether additional evidence should be allowed to be produced in a First Appeal is different from the question whether it should be allowed to be produced in a second appeal. IN KESSOWJI ISSUR V. GREAT INDIAN PENINSULA RAILWAY COMPANY 34 INDIAN APPEALS 115 the Privy Council has laid down that the High Court had no jurisdiction under sec. 568 to admit fresh evidence. Its power thereunder is limited to supplying any inherent lacuna or defect which appears on examining the evidence as it stands and does not relate to the discovery of new matter outside the Court. That decision is based upon sec. 568 of the earlier Civil Procedure Code. However it is necessary to note that the question of admitting fresh evidence arose in that case before the High Court of Bombay in an appeal from an original decree passed by the learned Single Judge of that Court. A review of several decisions to which Mr. Chhatrapati has invited my attention makes two propositions very clear. The first proposition is that the considerations which prevail in regard to the reception of additional evidence in a First Appeal are different from those which prevail in regard to its reception in a second appeal. IN a Second Appeal the Court is required to examine whether the impugned decree is in conformity with law. The findings of fact recorded by the lower appellate Court are final and binding on the Court. The second proposition which emerges from the aforesaid decision is that additional evidence subsequently discovered by a party cannot be admitted in a Second Appeal. That is the view which this Court has taken in three decisions to which I have referred. That is the view which was taken by the High Court of Bombay in RAMCHANDRA PANDURANG SATHE V. KRISHNAJI VITHAL JOSHI (SUPRA). IN light of this settled view on the question it is clear that the additional evidence which Mr. Chhatrapati seeks to produce in this second appeal cannot be taken. The expression substantial cause under Order 41 Rule 27 does not in ms opinion mean that a further opportunity should be given to the plaintiffs to fill in the lacuna caused by their indifference and negligence. The first contention which Mr. Chhatrapati has raised is therefore without any substance and is rejected.