KALIKA PANDE Vs. RAM AUTAR PANDE

JUDGEMENT

(1.) This is a first appeal by a defendant against an order of remand of the lower Appellate Court. There was certain property which belonged admittedly to Tribhavan Pande who died about 20 years ago leaving a widow who died more than a year before the suit. The plaintiffs brought a claim for possession against the defendant who was in possession claiming that the defendant was a mere trespasser. The plaintiffs set up a pedigree claiming to be the nearest reversioners from Tribhavan Pande and the defendant also set up a pedigree claiming that he was the nearest reversioner from Tribhavan Pande. These two pedigrees were entirely different. The trial Court held that the plaintiffs had proved their pedigree and granted the plaintiffs a decree for possession. The defendant appealed and the lower Appellate Court found that the pedigree of the plaintiffs was merely supported by the evidence of plaintiff 1 who was an interested party and that the evidence of plaintiff 2 was of no value as he had no personal knowledge. The Court then proceeded to state that the record was left quite devoid of any evidence whatsoever on the point: It is true that the burden of proving their case rested on the plaintiff but in consideration of the peculiar view adopted by the lower Court, I do not think it proper to decide the case on the existing evidence. In fact I am of opinion that there is not sufficient material on the record to do justice to the case and to decide it one way or the other with fairness. The case must therefore go to the lower Court for fresh trial.

(2.) The case therefore was remanded with the direction "parties will be allowed to adduce any oral and documentary evidence that they like to produce." Now the defendant claims in this appeal that the Court below on its finding should have dismissed the suit of the plaintiffs and allowed the appeal and that the Court below was not entitled to make the order of remand allowing a fresh trial with permission to the parties to produce whatever further evidence they liked. Learned Counsel for respondents is not able to point to any rule of law under which such an order of remand could have been made. He refers to Order 41, Rule 27 which deals with the question of additional evidence when there is an appeal, and Rule 28 lays down that that additional evidence may either be taken by the Appellate Court or the Court subordinate to it. Now the Rule as it stand amended by this High Court is as follows: 27.(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But 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 evidence sought to be adduced by a patty to the appeal, which after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order under appeal was passed or made, or (c) 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.

(3.) The case does not appear to come under any portion of Rule 27. It is not under (a) because the trial Court did not refuse to admit evidence. It is not under (b) because there is no suggestion that the evidence was not within the knowledge of the plaintiffs or could not be produced by them at the time of the trial. It is not within (c) because it is not a case where the Appellate-Court has required any witness to be examined or any document to be produced to enable it to pronounce judgment. Learned Counsel referred to the words "for any other substantial cause." This Rule was formerly Sub-rule (b) and has been the subject. of interpretation by their Lordships of the Privy Council in Parsotim Thakur V/s. Lal Mohar Thakur . Their Lordships there laid down that the Rula was not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of Appeal. At p. 514 their Lordships stated: Under (1)(b) it is only where the Appellate-Court requires it (i.e., finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent. This is laid down in the most positive-terms by Lord Robertson in Kessowji Issur V/s. G.I.P. Ry. (1907) 31 Bom. 381 at p. 122.