VENKATACHELLA PILLAI Vs. RANGA PILLAI

JUDGEMENT

(1.) The learned District Judge has found mainly on the strength of a document Ex. M which was received in evidence by him on appeal that the plaintiffs (respondents) have proved that they were the nearest reversionary heirs of the deceased Devaraja Pillai. It is contended by Mr. T.V. Venkatarama Iyer for the appellants (who are most of the alienee-defendants) that that document was wrongly admitted in evidence and reliance is placed on Kessowji Issur v. G.I.P. Railway (1907) I.L.R. 31 B. 381 (P.C.) and Knshnamachariar v. Narasimhachariqr (1908) I.L.R. 31 M. 114.

(2.) The decision of their Lordships of the Privy Council in 31 B. 381 was considered in several later cases in this Court. It is necessary however, to refer only to Andiappa Pillai v. Muthukumara Thevan (1912) M.W.N. 450 S.A. No. 819 of 1911 and L.P.A. No. 118 of 1911 and Kamaswarappa v. Chelappathi (1914) M.W.N. 864. In all these cases it was held that when the appellate Court wishes to admit fresh evidence in order to enable it to pronounce a judgment to the satisfaction of its own mind, there is nothing in 31 B. 381 to prevent its doing so. It has been further observed in some of these later cases that the expression " for any other substantial cause " in Order 41, Rule 27 (old Section 568) gave further power to the appellate Court to admit fresh evidence on the same grounds as would justify the Court of first instance in granting a review. That the discovery after the filing of the appeal of fresh evidence not known to and not available to the appellant after due deligence in the first court is such substantial cause and that such evidence could be admitted at the hearing of the appeal has been also decided in Kalka Singh v. Bramah Singh (1911) 12 I.C. 332 and that view is supported by the decision of their Lordships of the Privy Council in Sheo Singh v. Raghubans Kunwar (1905) I.L.R. 27 A. 634 their Lordships having approved in that case of the reception of such fresh evidence by the appellate Court notwithstanding the arguments addressed to them that the reception of such evidence was improper.

(3.) In the present case, reading the judgment of the learned District Judge as a whole, we are satisfied that Ex. M. was admitted by him during the hearing of the appeal for "substantial cause" because he was satisfied that the plaintiffs were unable to produce it in the Court of First Instance through no fault or negligence of their own. The learned District Judge, no doubt, does not refer expressly to the plaintiffs negligence not having been the cause of their ignorance of the existence of Ex. M till after the decision of the District Munsif was pronounced but having regard to the learned Judge s refusal to allow the plaintiffs to produce another document as evidence before him on the ground that the plaintiffs were negligent in not having filed it before the Munsif, we think that he allowed Ex. M to be produced in appeal because he was satisfied that the plaintiffs were not guilty of negligence in not having produced this particular document before. In the case in 31 M. 114 the additional evidence was apparently allowed by the appellate Court in the very same irregular manner which was pointed out by their Lordships of the Privy Council in Kissowji Issur v. G.I.P. By. Co. (1907) I.L.R. 31 B. 381 as not permitted by law and hence, that decision is not relevant.