Ambuja Ammal vs Appadurai Mudali and Others

Sundara Aiyar, J.—In this case, there is no ground for interference in second appeal unless we are prepared to adopt the appellants''

contention that the Subordinate Judge acted illegally in admitting certain additional documents in evidence in appeal. The appeal was first heard on

the 14th September 1910. The Subordinate Judge then observed: I think it is necessary to have the documents described as 1 and 2 in the list

attached to the petition, and also the Will of the original mortgagee before the Court to enable it satisfactorily to pronounce its judgment,"" On that

ground, he allowed the additional evidence to be received. It is contended that in doing so he acted in excess of his powers. The Appellate Court''s

right to receive additional evidence in appeal is restricted by Order XLI, Rule 27, of the Code of Civil Procedure, 1908. The rule is in substantially

the same terms as Section 568 of the repealed Civil Procedure Code. It runs as follows: ""The parties to an appeal shall not be entitled to produce

additional evidence, whether oral or documentary, in the Appellate Court. But if [Clause (b)] 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 to be produced, or document to be received or witness to be examined"". Considering the clause apart from the decided cases, it

appears to me that the test laid down in Clause (b), if the Appellate Court requires any document to be produced or any witness to be examined to

enable it to pronounce judgment,"" is one relating to the state of mind of the Appellate Court and not an external standard. In other words, the test

is not, whether any Tribunal would be unable to pronounce any judgment without the production, of the additional evidence in question, but,

whether the mind of the Appellate Judge is in such a condition on the evidence on record that he requires any document to he produced of any

witness to be examined to enable him to pronounce judgment. The object appears to mi to he to enable the Appellate Judge to satisfy his own

mind, when he entertains a doubt; the test proposed is, therefore, not an external one, viz., whether some other mind or an average mind would

require additional evidence to be produced in order to pronounce some judgment or other.

In this case the Subordinate Judge states explicitly that he wished to have the additional evidence in order to be able to pronounce his opinion on

the merits of the contest between the parties. But it is argued for the appellant that there are authorities which we cannot disregard, which compel

us to hold that the power to admit additional evidence does not exist in such a case. The most important decision is that delivered by the Judicial

Commitee of the Privy Council in Kessowji Issur v. Great Indian Peninsular Railway Co. 31 B.M 381 : 6 C.L.J. 5 : 11 C.W.N. 721 : 17 M.L.J.

317 : 4 A.L.J. 461 : 9 Bom. L.R. 671 : 34 I.A. 115 : 2 M.L.T. 435. In that case the application for the admission of additional evidence was made

prior to the hearing of the appeal and so far as the report shows, the appeal had not been heard before permission was given for the admission.

The Appellate Tribunal, therefore, did not feel it to be necessary to have additional evidence in order to enable it to pronounce judgment. Their

Lordships of the Privy Council held that the additional evidence should not have been admitted. So far the case presents absolutely no anology to

the present one. It is the duty of the Appellate Court, according to the section, to give its reasons for admitting further evidence. No reasons had

been stated in the judgment of the Bombay High Court, nor does it appear that any difficulty was felt by the Appellate Court in coming to a proper

conclusion on the case without the help of the additional evidence admitted. Their Lordships lay stress on the fact that no reason was given for

allowing further evidence to be adduced. They then go on to say that the Appellate Court was merely reviewing and reversing Tyabji, J.''s refusal

of a review and they point out that further evidence was ordered, not after the appeal had been heard on the merits and the evidence as it stood

had been examined, but on special and preliminary application. They then make the observation on which stress is laid: ""The legitimate occasion for

Section 568 is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made,

outside the Court, of fresh evidence and the application is made to import it."" I do not understand the expression ''defect'' as meaning a defect

which makes it impossible to come to any conclusion at all; but a defect which makes it difficult for the Appellate Judge to come to a conclusion

satisfactory to his own mind. Nor do I think the expression lacuna'' carries the case any further. The general principle applicable to a Court of

Appeal having plenary jurisdiction over a cause is that it has got all the powers of the Court of first instance. See Section 107 of the Code of Civil

Procedure, 1908. Rule 27 of Order XLI is a restriction placed on the powers of the Court of first instance itself in admitting evidence at a late

stage of the case. It appears to me that a wide discretion is given to the trying Judge, when he feels a difficulty himself or when he considers it

proper in the interest of justice, to admit evidence which as a matter of discipline between party and party might be rejected. I think that Rule 27 of

Order XLI embodies no more than the same principle. I may observe, further, that in addition to a case where the Appellate Court feels a difficulty

in coming to a satisfactory conclusion on the evidence on record, additional evidence may be admitted also ""for any other substantial cause."" In

Subba Naidu v. Ethirajammal 12 Ind. Cas. 673 : 22 M.L.J. 14 : 10 M.L.T. 409 : (1911) 2 M.W.N. 440 Abdur Rahim, J., was inclined to hold

that that phrase must be interpreted as meaning a cause of a nature similar to the classes of cases referred to in, the preceding clause. I find it

difficult to understand what a cause of the same kind as is referred to in the preceding clause would be. In my opinion, the object of adding any

other substantial cause"" was to give a wide discretion to the Appellate Court to admit additional evidence when the ends of justice should require it

to be done. In Krishnama Chanar v. Narasimha Chariar 31 M.M 114 : 3 M.L.T. 308 no Metation was put on any other substantial cause."" On the

other hand in Andiappa Pillay v. Muthtihumara Thevan 14 Ind. a more liberal interpretation was put on the powers of the Appellate Court to admit

additional evidence. My learned brother Sadasiva Aiyar, referred there to the powers given to the Court of fiinstance in order to enable the Court

to do justice. In my opinion similar powers are vested in the Court of Appeal although a restriction is placed, in the interests both of discipline and

of preventing concoction of evidence, on the discretion vested in the Appellate Court. I am of opinion that there are no grounds for holding that the

additional evidence was wrongly, admitted in this case. I dismiss the second appeal with costs.

Sadasiva Aiyar, J.

I concur in the judgment of my learned brother.