Bashyam and another vs Ananthammal and other

Alagiriswami, J.—The plaintiffs are the appellants. The suit related to property, which belonged to one Ayyamperumal. The plaintiffs are the

reversioners of Ayyamperumal. The 2nd defendant has purchased the property from the 1st defendant, who claims to be the widow of

Ayyamperumal. The plaintiff''s case was that the 1st defendant was the widow of one Manickam. The case of the defendants on the other hand

was that the first defendant was divorced from Manickam according to caste custom and that therefore she married Ayyamperumal.

Ayyamperumal died in 1942. Evidence was also produced by the defendants to show that the 1st defendant had borne a child to Ayyamperumal.

The plaintiffs on the other hand contended that the 1st defendant had never been married to Ayyamperumal but she had only been married to

Manickam. The trial court dismissed the suit. During the course of the appeal the plaintiffs wanted to let in evidence to show that the 1st defendant

had been living in Aminjikarai in Madras, that in the electoral roll of the Legislative Assembly relating to Aminjikarai the 1st defendant''s name is

found and there she is mentioned as the widow of Manickam. They also produced an extract from the birth register showing that the 1st defendant

had borne a child to Manickam in 1948 and another extract from the death register showing that the child had died in 1952. Another document,

which the appellants produced was the full electoral roll to show that this was not a stray entry in the electoral roll. The lower appellate court

dismissed this petition for reception of additional evidence holding that it would be wrong and incorrect to allow the plaintiffs to file these

documents, as, if permitted, it would defeat the ends of justice and would result in parties being permitted to cook up and file irrelevant deeds by

scanning birth registers. Considering the fact that all the documents sought to be produced by the appellant are public documents. I do not think

that the lower appellate court was correct in saying that if admitted it would prompt parties to cook up and file irrelevant deeds.

The only other question that might arise was as to why these documents were not filed at an earlier stage. The whole of the electoral roll seems

to have been sought to be filed, because it was stated that the extract from the electoral roll originally filed by the plaintiffs referred only to one

entry. With regard to the birth of a child to the 1st defendant through Manickam and the death of that child documents were produced at that

stage, because only during the course of the evidence of the 1st defendant''s father he said that Manickam died within three or four months after the

dissolution of his marriage with the 1st defendant. I should consider therefore that this is an eminently fit case where the additional documents

sought to be produced by the plaintiffs should have been admitted in evidence.

It is however urged on behalf of the respondents that this court has no power in second appeal to take this fact into consideration, and reliance

was placed upon the decision of a Full Bench in Vaithinatha Pillai v. Kuppu Thevar (1). But when that decision was rendered O. 41, R. 27 did not

contain a clause similar to Cl. (b) of Sub-R. (1) of R. 27 of O. 41 , C.P.C. That sub-rule is as follows:

If the party seeking to adduce additional evidence satisfies the Appellate Court that such evidence notwithstanding the exercise of due diligence,

was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed the Appellate

court may allow such evidence or document to be produced or witness to be examined.

I have shown above that this rule is satisfied in this case. The question still remains whether, if the lower appellate court refused to admit

additional evidence under the provisions of this rule, it is open either to make it a ground for allowing the appeal or at least remanding the appeal

for a fresh disposal after taking into consideration the additional evidence. It is suggested that it is not possible. For this contention reliance is

placed upon the decision in Arjan Singh v. Kartar Sing 14. S.C.J. 274. It was held there that discretion to receive and admit additional evidence is

not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order 41 rule 27, C.P.C., and that if the additional evidence

was allowed to be adduced contrary to the principles governing the reception of such evidence it would be a case of improper exercise of

discretion and the additional evidence so brought on the record will have to be ignored and the case decided as if it was non-existent. This case,

far from helping the respondents would really help the appellants. If the preposition laid down by the Supreme Court is correct, the contrary

proposition that the rejection of additional evidence contrary to the principles (1) 42.Mad. 737. governing such evidence would also be a case of

improper exercise of discretion and this court can interfere. Reliance was also placed upon Raja Kamala Ranjan Roy Vs. Baijnath Bajoria, There it

was held as follows:--

Where the appeal court allows the additional evidence to be given in order to clear up certain matter and for the purpose of enabling it to come to

a proper decision on the point, the matter is fully covered by O. 41, R. 27 C.P.C. and no objection can be taken to the course adopted by the

appellate court in second appeal as there is no reason to interfere in the exercise of the court''s discretion.

But that was a case, which was concerned with O. 41 rule 27, sub-rule (1) clause (c) C.P. Code and not with clause (b), and that would not

apply to this case. In Kanjanur Sri Agneswaraswami Devasthanam Vs. Thillai Govinda Pandithan, It was held that without indicating that he was

opinion that the defendant, notwithstanding the exercise of due diligence could not produce the document at the trial it was not open to an appellate

Judge to admit such document as material for the purpose of deciding the defence of the defendant. This was also relied upon by the respondents,

but this is not a case where the evidence has been admitted by the lower appellate court. In Gudivada Satyarao Vs. Vemparala Venkataratnam,

Horwill, J. pointed out that the lower appellate court was right in applying sub role (1) (b) of rule 27, Order 41, C.P.C. if it was satisfied that the

defendant could not produce the evidence at, the trial notwithstanding the exercise of due diligence, and he distinguished the earlier case in

Maddipati Narasimhamurti and Others Vs. Hayat Khan and Others, n the ground that it was a case when the present clause (b) of Or 41 rule

27(1) had not been inserted. In Mullah''s Civil Procedure Code, 13th Edn. Vol. 2, page 1611, the scope of the amendment introducing clause (b)

has been noted as enlarging the ambit of the rule and conferring on a party a right to adduce in appeal evidence irrespective of the requirements of

the court provided he acted with due diligence. I am also satisfied that this is a case where the party could not have produced his evidence in the

trial court notwithstanding the exercise of due diligence, because at that time this evidence was not necessary at all and he should have been

allowed to produce this evidence. The refusal of the lower appellate court to permit this evidence to be adduced provides sufficient cause within

the meaning of clause (c, of S. 100(1). In ''Mullah''s Civil Procedure Code, 13th Edn. page 443, this has been accepted as the correct position.

The second appeal is therefore allowed. The decree and judgment of the lower appellate court are set aside. The lower appellate court is directed

to receive the evidence produced before it in I.A. 357 of 1963 and dispose of the appeal afresh. If it considers that it is necessary to enable the

defendants to let in any further evidence, to rebut the conclusion following from the additional evidence adduced on behalf of the plaintiffs, it should

permit them to do so. If necessary it can also either remand the suit for fresh disposal by the trail court or call for a funding from the trail court. The

appellants will get a refund of the court fee paid by them in this court. Costs will abide and be provided for in the fresh decree to be passed by the

lower appellate court. Leave refused.