MT DURGA TEWARY Vs. RAMRATI KUER

JUDGEMENT

(1.) This second appeal is by defendant 1 against a decree of the Subordinate Judge of Saran reversing a decision of the Munsif of Chapra. The plaintiff claimed as the sister of a lady named Kalika who had died, and one of the important issues in the case was as to when Kalika in fact died. The matter was heard by the trial Court, and it was held that the lady died as alleged by the plaintiff in the year 1928. The matter went on appeal to the lower Appellate Court, and the lower Appellate Court had brought to its notice a certain document purporting to be an admission by the plaintiff of the date when the lady died and putting that date not at the date alleged by the plaintiff but at a subsequent date, the 8 May 1929. The learned Judge decided to admit this document into evidence and having considered it together with the rest of the evidence allowed the appeal, deciding that the lady in fact died on 8 May 1929. The matter was taken on second appeal to a learned Judge of this Court sitting singly, and the appellant took the ground that the lower Appellate Court should not have admitted this additional evidence. There was another point in dispute which was a matter of law only. The learned Judge heard the second appeal and decided to refer the matter of the legal point to a larger Bench. It was accordingly heard by a Full Bench and the matter of its disposal is of no great interest, the order being in so far as it affects this case that the case was sent back to a Division Bench and now comes before us.

(2.) The main point which has been taken before us is that of the admission of the evidence by the lower Appellate Court. On behalf of the appellant and in assistance of his argument there has been produced before us an expression of opinion by the learned Judge who first heard the case in second appeal, to the effect that the additional evidence should not have been received by the lower Appellate Court and that the case should have been indeed decided ignoring the additional evidence which was in fact admitted and taken into consideration. The argument of the learned advocate and the opinion of the learned Judge of this Court are based upon the wording of Order 41, Rule 27, Civil P.C. It is suggested that the meaning of para, (b) of that Order is that the evidence should not be admitted except on the definite requirement of the Court itself and that if the new and additional evidence il| produced by one of the parties, it should I be ignored. It is sought to base this argument upon certain passages in a judgment of their Lordships of the Privy Council in Parsotim Thakur V/s. Lal Mohar Thakur, AIR 1981 PC 143. In my opinion the judgment referred to lays down no such proposition. It is suggested from the wording of the judgment that unless the Appellate Court itself finds some good reasons for filling up some lacuna in the evidence, the parties have no right to produce such further evidence. The wording of para, (b) is quite against such a view and I am perfectly certain that their Lordships of the Privy Council intended to lay down no such principle. The Appellate Court may require any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, and as was pointed out by their Lordships of the Privy Council in the case referred to, the word "requires" means that it is necessary. It may be necessary for the purpose of enabling the Court to pronounce judgment, that is to say the Court may find that unless such evidence is produced before it, it has not sufficient material before it to decide the case or there may be some other good and substantial cause and the most common and frequent is that the evidence was not available in the trial Court because the party was unaware of it at the time of the trial and only has it been brought to the notice of the party. It must be remembered that a party is entitled to obtain a review of a judgment, and one of the grounds upon which it is entitled to obtain a review is that evidence which it could not be expected to have produced at the trial has become available since the trial which is material to the decision of the issue.

(3.) It would be ridiculous to imagine that the Appellate Court should first of all ignore the profferred- new evidence and then allow the profferred new evidence to be brought before it on an application for review of its own judgment. There is a point further which must be noticed in considering the judgment of the Privy Council: they did not decide that if the Court should have exercised its discretion to admit further evidence upon grounds which did not appeal to the Privy Council, the Privy Council would have proceeded to refer the matter back to the lower Appellate Court to be heard with directions that the additional evidence given was to be ignored, nor did they decide the matter themselves ignoring such additional evidence. The principles upon which the Court is to exercise its discretion are well known. If that discretion, however, has been exercised and if the additional evidence has been admitted, and is admissible as relevant, the additional evidence must be heard upon its merits even if the discretion to admit it may have been exercised upon erroneous grounds, for an Appellate Court does not interfere with the discretion of a lower Court unless that discretion has been exercised upon fundamentally erroneous principles. The learned Judge of this Court, however, seems to have been led to the impression that the case ought to have been remanded by him to the lower Appellate Court to be decided on the evidence as it stood before the admission of the additional evidence, and I see no justification for that point of view. In the case before the Privy Council, their Lordships, as a matter of fact, while stating that the additional evidence ought not to have been admitted, considered that additional evidence on its merits which governed the decision on the appeal and nothing else.