PARAWA SANGAPPA Vs. RAYANGOUDA CHANDRAMAPPA

JUDGEMENT

(1.) THIS second appeal arises out of a suit for an account of a mortgage under Section 15d of the Dekkhan Agriculturists' Relief Act. The plaintiff executed a sale-deed in favour of defendant No.1 and Hirenna, the father of defendants Nos. 2 and 5, purporting to convey his land survey No.76 for Rs. 1,000 on June 21, 1928. He alleged that he received only Rs. 600 as the consideration of the sale-deed and that the transaction was really a mortgage. The trial Court held that the consideration of the sale-deed was Rs. 1,000 and that the transaction was an absolute sale and not a mortgage. The suit was, therefore, dismissed. In the appeal filed by the plaintiff, the lower appellate Court allowed him to examine his brother-in-law Kallappa to prove what the real consideration of the sale-deed was, and, after considering all the evidence, it held that the consideration was only Rs. 600, that the mortgagees did not take possession of the land, that the consideration was grossly inadequate, that there was an agreement to treat the transaction as a mortgage, and that the transaction was in fact a mortgage. Accounts were taken of the mortgage, and it was declared that the amount due to the defendants at the date of the suit was Rs. 600 for principal and interest at twelve per cent. per annum from the date of the mortgage to the date of the suit, amounting in all to Rs. 1,041. The plaintiff had also passed two other bonds for Rs. 200 each, and the lower appellate Court held that they had been passed for arrears of interest.

(2.) IN this appeal it is contended that the lower appellate Court was not right in admitting the oral evidence of Kallappa without giving any reasons for doing so and without specifying the points to which that evidence was to be confined as required by Order XLI, Rules 27 and 29, of the Civil Procedure Code. It is true that when additional evidence was to be admitted in appeal for the first time, reasons should have been given and also the points on which the evidence was to be recorded should have been specified. IN Manmohan Das v. Ramdei (1931) 33 Bom. L. R. 1251 P. C. their Lordships of the Privy Council found that the exceptional procedure provided by Order XLI, Rules 27 and 29, could be resorted to only in special circumstances and with the adequate safeguards mentioned in those rules, and as in that case that procedure was not followed, their Lordships held that the admission of additional oral evidence was highly irregular and must be entirely discarded. As it appeared from the judgment that it was materially influenced by the incompetent evidence, their Lordships proceeded to consider the evidence led before the trial Court leaving out of consideration the additional evidence recorded in appeal. Under similar circumstances in Surendrakumar Chaudhuri v. Gangachandra Chaudhuri (1934) I. L. R. 61 Cal. 412 the case was remanded to the lower appellate Court for a fresh decision discarding the additional evidence from consideration. Although the lower appellate Court in this case has not passed any separate order setting out the reasons for admitting the additional evidence of Kallappa, yet in its judgment the reasons are sufficiently stated. The plaintiff had sold his land to Kallappa's father Fakirappa in 1914, and he wanted to repurchase it from Kallappa. The defendants alleged that the plaintiff paid Rs. 800 to Kallappa, and for that purpose executed the sale-deed in suit after taking Rs. 200 more for family expenses. On the other hand the plaintiff's case was that Kallappa was paid only Rs. 400 for the re-conveyance of the land. Kallappa, how-ever, was not examined in the trial Court, but in appeal the plaintiff-appellant put in Kallappa's affidavit to the effect that Kallappa was asked by the plaintiff to be present in the trial Court on the date of the hearing, but by the time Kallappa presented himself in the Court premises, the suit had been completely heard. On this ground the plaintiff-appellant made an application before the lower appellate Court that Kallappa should be examined in appeal, and in his judgment the learned District Judge says that "in view of the affidavit and the fact that Kallappa's evidence is highly important I permitted the plaintiff to cite Kallappa as a witness. " Order XLI, Rule 27, of the Civil Procedure Code, says that if the appellate Court requires any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, it can allow such additional evidence to be adduced; but Clause (2) of that rule says that wherever additional evidence is allowed to be produced by an appellate Court, the reasons for its admission should be recorded, and Rule 29 requires that the points to which the evidence is to be confined should be specified. IN this case reasons were stated in the lower appellate Court's judgment, though not separately before the evidence was allowed to be adduced, and the only point on which Kallappa was examined was as regards the amount paid to him. Even these reasons and the points should have been recorded in a separate order before the witness was examined so that the other side would know on what points the additional evidence was going to be led and whether any evidence in rebuttal should be adduced. The omission to follow the procedure laid down by Order XLI, Rules 27 and 29, of the Civil Procedure Code, is indeed a gross irregularity which should have been avoided, and had the judgment of the lower appellate Court been based on this additional evidence or been greatly influenced by it, I would have either reconsidered the evidence adduced before the trial Court leaving out of consideration the additional evidence or would have remanded the case to the lower appellate Court for a fresh decision. But it appears from the judgment of the lower appellate Court that although Kallappa's evidence was taken into consideration, the lower appellate Court was prepared to come to the same finding even without that evidence. The question to be decided is what amount was paid to Kallappa for the reconveyance, and the lower appellate Court has referred to exhibit 60, an extract from the Record of Rights, from which it is clear that the reconveyance was for Rs. 400 only. Moreover, the lower appellate Court, after considering the evidence of Somanna (exhibit 36) and the reasons adduced against that evidence, thought it proper to believe Somanna who stated that Rs. 600 only were paid as consideration for the sale-deed in suit. The trial Court thought that Somanna had no reason to be present when the consideration was paid; but the lower appellate Court has considered that point also and believed Somanna in view of the fact that he was the person who identified the plaintiff before the Sub-Registrar when the sale-deed in suit was registered. Thus, all the evidence has been fully discussed and, even leaving out of consideration Kallappa's evidence, I find that the lower appellate Court would have come to the same conclusion; and I am also prepared, on the rest of the evidence, to agree with the finding of the lower appellate Court that Kallappa had paid Rs. 400 only and the consideration of the sale-deed in suit was Rs. 600. The other findings recorded! by the lower appellate Court are all findings of fact which cannot be challenged, and, in view of those findings, it was right in holding that the transaction in suit was a mortgage and not an absolute sale. No-other point was urged, and I dismiss the appeal with costs. .