Ambuja Ammal vs Appadurai Mudali and Others

Sundara Ayyar, J.—In this case, there is no ground for interference in Second Appeal unless we are prepared to adopt the appellant''s

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the same terms as Section 568 of the repealed Civil Procedure Code.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 [C.P.C. 568, 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 teat 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 be

produced or any witness to be examined to enable him to pronounce judgment. The object appears to me to be 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

Committee of the Privy Council in kessowji Issur v. G.I.P. Railway Company (1907) 31 Bom. 381. 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 analogy - to the present one. It is the duty of the appellate Court, according to the section, to give its reasons for

admitting farther 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. Sea 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 interests 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 alias Subbarayulu Naidu Vs. Ethirajammal and Others, , ABDUR RAHIM, J. was

inclined to hold 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 Chariar v. Narasimha Chariar I.L.R (1908) Mad. 114, no interpretation was put on ""any other substantial

cause."" On the other hand in Andiappa Pillai v. Muthukumara Thevan I.L.R.(1913) Mad. 477 a more liberal interpretation was put on the powers

of the appellate Court to admit additional evidence. My learned brother SADASIVA AYYAR, J., referred there to the powers given to the Court

of first instance 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 Ayyar, J.

I concur in the judgment of my learned brother.