KHEMCHAND MULCHAND Vs. GOVERNMENT OF MADHYA PRADESH BHOPAL

JUDGEMENT

(1.) THE circumstances in which this revision petition has been filed are that the applicant filed a suit in the Court of Civil Judge, Class II, chhindwara, challenging the validity of land acquisition proceedings of certain lands and claiming a declaration that the land acquisition proceedings were illegal and void. The suit was decreed by the trial Court. Thereupon the non-applicants Nos. 4 and 5 preferred an appeal in the Court of the Additional district Judge, Chhindwara, against the judgment and decree of the Civil Judge, class II.

(2.) WHILE the appeal was pending for hearing, the aforesaid non-applicants presented an application under Order 41, rule 27 of the Code of Civil procedure for being allowed to tender in evidence a document. They also made an application for amendment of their written statement. Both these applications were allowed by the learned Additional District Judge on the condition of payment of costs to the petitioner. The plaintiff applicant has now come up in revision against the order of the Additional District Judge permitting the non-applicants Nos. 4 and 5 to tender additional evidence and to amend their written statement.

(3.) IN my judgment, the learned Additional District Judge followed an altogether erroneous course in considering the application of the non-applicants nos. 4 and 5 for amendment of their written statement and their application under Order 41, rule 27 of the Code without first hearing the appeal on merits. The powers of the appellate Court to take additional evidence are regulated by Order 41, rule 27 (t ). Under that rule the appellate Court can permit the parties to an appeal to produce additional evidence if- (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the appellate Court requires any document or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause these conditions must be satisfied before additional evidence can be allowed to be tendered at the appellate stage. The rule is not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak part of his case and to fill up an omission in appeal. Now, the question whether the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or the question whether the appellate Court requires additional evidence to enable it to pronounce judgment or whether there is any other substantial cause for permitting additional evidence cannot in its very nature be decided unless and until the appeal is first heard on merits. As pointed out by the Privy Council in Parsotim v. Lal Mohar (air 1931 p c 143=58 I A 254) and by the supreme Court in Arjan Singh v. Kartar Singh and others (air 1951 s c 193=1951 s c r 258.) the legitimate occasion for admitting additional evidence in appeal is when on examining the evidence as it stands some inherent lacuna or defect calling for the exercise of the discretion under Order 41, rule 27 (1) becomes apparent. A party may during the pendency of an appeal move the Court for being allowed to produce additional evidence; but the appellate Court is clearly not in a position to decide whether additional evidence should or should not be allowed to be produced unless and until the appeal is first heard on merits. This seems to be plain enough and does not require elaboration.