B SUBBAYYA Vs. KRANGA RAO

JUDGEMENT

(1.) The District Judge of Kurnool has made an order, admitting at the instance of the 1 plaintiff, additional evidence while hearing an appeal and the 1 defendant attacks the correctness of this order, in the Civil Revision Petition before me. The point in controversy is : Had the District Judge jurisdiction to make the order in question? Order 41, Rule 27, Civil Procedure Code, deals with production of additional evidence in an Appellate Court. The material portion runs thus: 27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. (b) But if the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2.) The argument of Mr. Seshachari, the learned vakil for the 1 defendant, is, that under this provision of law, a suitor cannot apply for admission of additional evidence, but that its provisions can be invoked, only when the Appellate Court itself discovers some inherent lacuna or defect and requires evidence to fill up the gap or remedy the defect. In other words, that the Appellate Court can act under this section of its own motion and not at the instance of the parties and reliance is placed upon the decision of the Judicial Committee in Kesswaji Issur V/s. G.I.P. Ry. (1907) 31 Bom. 381. It is no doubt true that some passages in the judgment in this case, lend apparent support to this argument; the observation that is most relied upon, being the following: This is important, because the legitimate occasion for Section 568 is when, on examining the evidence as it stands, some inherent lacuna or direct becomes apparent, not where a discovery is made outside the Court, of fresh evidence and the application is made to import it. That is the subject of the separate enactment in Section 623.

(3.) Section 623, referred to above, is the section relating to review of judgments and orders. I understand the argument to be that a party wishing to give additional evidence must be able to bring himself, within the provisions relating to review and that his proper procedure is to apply to the trial Court for review and not to apply for admission of additional evidence to the Court which hears an appeal from the decision.