VAITHINATHA PILLAI Vs. KUPPA THEVAR

JUDGEMENT

(1.) The attention of the learned Judges who made the reference does not appear to have been called to the long catena of decisions in Calcutta and to the decisions to the same effect in Allahabad. Shortly after the coming into force of the Code of 1859 it was decided by Sir Barnes Peacock and Jackson, J.--Beckwith v. Kishto Jeebun Buckshee (1914) I.L.R. 42 Cal. 675 at p. 681 that no special or second appeal lay from a refusal by the lower appellate court to admit fresh evidence under Section 355 of that Code which re-appears as Order XLI Rule 27 of the present Code. The decisions in Mohesh Ghunder Sheet v. Shoshee Mookhee Debia (1866) 6 W.R. 196 Golam Mukdoom v. Mussamut Hafee Zoonissa and Ors. (1867) 7 W.R. 489 at p. 490 Kulpo Singh v. Thakoor Singh and Anr. (1871) 15 W.R. 129 and In the goods of Prem Chand Moonshee : Upendra Mohan Ghose v. Gopal Chandra Ghose (1894) I.L.R. 21 Cal. 484 are to the same effect, as are the decisions of the Allahabad Court in Ram Piari v. Kallu (1900) I.L.R. 23 All. 121 and Durga Prasad v. Jai Narain (1911) I.L.R. 33 All. 379. There are no reported decisions in Madras and Bombay as there must have been if this long line of authorities had ever been questioned in these Courts. It has, I think, long been the practice of all the High Courts not to entertain second appeals from refusals of the lower appellate court to admit fresh evidence under this rule. I am not prepared to depart from this practice and would answer the question in the negative. Ayling, J.

(2.) In my opinion the answer to the reference must be in the negative. The effect of Order 41 Rule 27 Clause (b) is to empower an appellate court to admit additional evidence provided it requires the evidence to enable it to pronounce judgment or for any other substantial, cause. Whether it requires the additional evidence or not is for the appellate court itself to say, and it is not for a superior court to control its discretion, or to say that it ought to have required it, where, as a fact, it did not. I would respectfully adopt the reasoning of Sale, j., in In the goods of Prema Chand Moonshee : Upendra Mohan Ghose v. Gopal Chandra Ghose (1894) I.L.R. 21 Cal. 484 which is in accordance with along catena of early Calcutta decisions beginning with a judgment of Peacock, C.J., and Jackson, J., reported in Marshall s Reports p. 278. That the word " requires" in the corresponding Section 568 of the old Code means nothing more than "needs" or "finds needful" has been expressly decided by the Privy Council in Kessowji Issur v. Great Indian Peninsular Railway Co. (1907) I.L.R. 31 Bom. 331 and this pronouncement, as it seems to me, concludes the matter if authority were needed. Sadasiva Aiyar, J.

(3.) I regret that I have the misfortune to differ from my Lord and Ayling, J., on this reference. It having been now settled in this Court that good grounds for review are also good grounds for the appellate court to allow further evidence to be adduced, the question whether the appellate court exercised its discretion properly in refusing to admit such evidence seems to be clearly a question of law which we are entitled to consider in second appeal.