K M SRINIVASAM PILLAI Vs. YPRLALAGAPPA CHETTIAR

JUDGEMENT

(1.) THIS case arises out of an application filed by two creditors of the insolvents in I.P. Nos. 133 to 135 of 1927 in the Court of the Subordinate Judge, Coimbatore, to declare as void a mortgage-deed executed by two of the insolvents for Rs. 20,000 on 7 December, 1926, in favour of the first respondent and also for cancellation of the assignment of the mortgage bond by the first respondent on 2nd January, 1930, in favour of the second respondent. The application was dismissed by the Subordinate Judge who heard the witnesses, but on appeal by the creditors the District Judge allowed the application and set aside the mortgage deed, Ex. III. In revision it is contended inter alia that the procedure adopted by the learned District Judge in the disposal of the appeal was not according to law, and in particular that his reception of additional evidence in appeal was contrary to the provisions of law which govern admission of additional evidence in appeal. To understand this contention it is necessary to state that soon after the appeal was filed, that is to say, on the 10 September, 1934, the creditors who were appellants and filed an application under Order 41, Rule 27, Civil Procedure Code, to the District Judge for admitting certain documents as additional evidence in appeal. On the same day they applied to the Subordinate Judge to review the order passed by him under Order 47, Rule 1, Civil Procedure Code, on the ground that certain important evidence had been discovered subsequent to the disposal of the application by the Subordinate Judge. Evidence was taken in the review petition and a number of documents were marked for the creditors. After full enquiry the petition for review was dismissed by the Subordinate Judge. Thereupon it would appear that the same documents which had been marked for the creditors in the review application before the Subordinate Judge were tendered as additional evidence in appeal in the District Court. These documents appear to have been referred to and discussed at the hearing of the appeal before the District Judge before they were actually admitted as additional evidence in appeal or exhibited. It would also appear that no opportunity was actually given to the opposite side, that is, the present petitioner, to adduce rebutting evidence. The provisions of Order 41, Rule 27, Civil Procedure Code, have been considered by their Lordships of the Judicial Committee more than once. It is sufficient to refer in this connection to Kessowji Issur V/s. G.I.P. Railway Co. (1907) 17 M.L.J. 347 : L.R. 34 I.A. 115 : I.L.R. 31 Bom. 381 (P.C.) and Parsotim Thakur V/s. Lai Mohar Thakur (1931) 61 M.L.J. 489 : L.R. 58 I.A. 254 : I.L.R. 10 Pat. 654 (P.C.). The relevant provisions themselves are to the effect that additional evidence may be allowed by the appellate Court to be given in appeal if the appellate Court requires such evidence in order to enable it to pronounce judgment or for any other substantial cause. As observed by their Lordships of the Judicial Committee, the word "requires" in Order 41, Rule 27(1)(b) means finds it needful . In this case it does not appear that this additional evidence that was actually admitted was necessary for the determination of the appeal or for any other substantial cause, as far as can be seen from the judgment of the learned Judge who at the end makes the following observation: I do not base my finding on the documents filed by the appellants and marked in this appeal.

(2.) THOUGH no doubt he adds that in his opinion these documents prove that the mortgage in question was fraudulent and not supported by consideration, nevertheless if even in the absence of this additional evidence the learned District Judge was in a position to arrive at a finding, there was obviously no necessity or need to admit additional evidence in appeal, the effect of which was only to confirm the finding which he had come to on the existing evidence. Moreover, Order 41, Rule 27, Sub-rule (2) clearly requires that reasons should be given for admitting additional evidence. In this case the reason given by the learned District Judge does not appear to be sufficiently definite; the reason given is the formula "in the interests of justice", which may mean everything or which may mean very little. It is difficult to see in the circumstances of this case, especially in view of what the District Judge has said, namely, that he does not base his finding on the additional evidence, why the interests of justice required additional evidence to be taken. Order 41, Rule 29, Civil Procedure Code, provides that where additional evidence is directed or allowed to be taken the appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified. This rule has not been observed by the learned District Judge. This rule serves a very useful purpose, namely, it ensures that the appellate Court will consider exactly on what points there is a lacuna which requires to be rectified and also that an opportunity will be given to both sides to adduce additional evidence on particular points on which additional evidence is allowed to be taken in appeal. What has happened in this case illustrates the danger of not observing the provisions of this rule, namely, Rule 29 of Order 41, Civil Procedure Code. The documents which were put forward by the appellants were admitted at the end of the hearing of the appeal, and the other side had apparently no opportunity whatever to adduce any evidence of their own on the points to which the admitted documents related, and the result in that additional evidence has been taken in appeal only on one side without the other side being given a proper opportunity of adducing evidence. In view of the irregularity of the procedure adopted by the learned District Judge which must obviously have prejudiced the petitioner, I am of opinion that the order of the District Judge in appeal cannot be allowed to stand. It is accordingly set aside and the District Judge of Coimbatore is directed to restore C.M.A. No. 97 of 1934 to his file and dispose of it according to law. It will be open to him to admit additional evidence in appeal in accordance with law and if he should think it necessary. The petitioner's costs in this petition must be paid by the respondents who will bear their own costs in this petition.