Gurbachan Singh vs Ichhar Singh and Others

Inder Dev Dua, J.—This regular second appeal is directed against the order of the learned District Judge, Jullundur, affirming the judgment and decree of the learned Sub-Judge 1st Class, dismissing the Plaintiff-Appellants suit for possession by inheritance of the land in question. It is not necessary to state in detail all the facts in controversy. Suffice it to say that the Learned Counsel for the Appellant has very frankly conceded that without admitting the additional evidence which he seeks to adduce under Order 41, Rule 27, CPC , it is not possible for him to assail the findings of fact arrived at by the learned lower appellate Court.

To appreciate the question relating to the admission of additional evidence, it may be observed'' that the two pedigree-tables, reproduced in the judgment of the learned District Judge show Sewa Singh and Dana as the respective heads of families represented by these pedigree-tables. The simple question on which depends the fate of controversy is whether or not these two persons Sewa Singh and Dana were real brothers. The Courts below have found that they were real brothers and on this basis the Plaintiff''s claim to succession has been negatived and that of the Defendants upheld.

Mr. D.N. Awasthy, Learned Counsel for the Appellant, has produced a certified copy of translation of an extract from khasra khana shumari relating to Mauza Sandhawala, Pargana Nakodar, District Jullundur, prepared during the regular settlement of 1849-50, maintained in the Sadar (District) Revenue Office, Jullundur District. In the foot-note in this document one Sewa is described to be son of Himmat and one Dana is described to be son of Sahon. From this it is sought to be inferred that Sewa and Dana mentioned above were not real brothers and that the conclusion to the contrary of the learned District Judge and also that of the trial Court is erroneous.

Now an attempt was also made before the learned District Judge to adduce additional evidence but the same was disallowed with the following observations:

Counsel for the Appellant has made an application under Order 41, Rule 27, Code of Civil Procedure, for production of additional evidence such as copies of entries from the register of Naqasi, 1851, relating to the ownership of Dana and Sewa, but I do not find any good ground for allowing additional evidence at this stage. The Appellant had full opportunity of producing the evidence in the trial Court and he himself had closed his case there. The application made fey the Appellant''s counsel is accordingly rejected.

The Appellant''s Learned Counsel has placed considerable reliance on a recent decision of the Supreme Court in K. Venkataramiah Vs. A. Seetharama Reddy and Others, for the proposition that the appellate Court''s power to admit additional evidence has by virtue of this decision been widened, than was previously supposed under the decision of the Privy Council in AIR 1931 143 (Privy Council) . According to the Learned Counsel for the Appellant, the Supreme Court decision has given broader effect to the expression "for any other substantial cause" occurring in Order 41, Rule 27(1)(b). This expression, so argues Mr. Aswasthy, should not now be construed as ejusdem generis to the reasons which precede this expression in this clause. The matter has been dealt with in the Supreme Court decision in the following words:

In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy''s age if the entries in the admission registers of the school were made available. It was vehemently Urged by the Learned Counsel for the Appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the High Court required any additional evidence to enable it to pronounce judgment. The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable ''us'' to pronounce judgment. Apart from this, it is well to remember that the appellate Court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment'' but also for any other substantial cause.'' There may well be cases where even though the Court finds that it is able to pronounce judgment on the state of the) record as it is, and so, it cannot strictly say that it requires additional evidence to ''enable it to pronounce judgment,'' it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence ''for any other substantial cause'' under R. 27 (1)(b) of the Code.

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(iv) the legislative intention is not clearly manifest in favour of according broader meaning to the general words.

There should, in my opinion, be a particular description of objects sufficient to identify what was intended, followed by some general or ''omnibus'' description so as to facilitate the assumption that the latter is intended to be confined to the objects of the same class or kind as the former. Since the class of enumeration may of ten be an artificial creation, the rule of ejusdem generis, is a times described to be a dangerous yard-stick to measure the legislative intent with. It is, therefore, to be applied with caution lest it is pushed too far.

In view of the foregoing observations I find that in Order 41, Rule 27(1)(b) there is no such enumeration of specific objects with the result that there is scarcely any occasion to attract the rule of ejusdem generis for interpreting the general expression "for any other substantial cause." The statutory intention, however appears to me to be clear that it is the requirement of the appellate Court to enable it to pronounce judgment or for any other substantial cause that the additional evidence can be allowed to be produced. The matter appears to be dependent on the discretion of the appellate Court, albeit, judicial discretion. If there is no error of law, then the Court of second appeal would, ordinarily speaking; not be entitled to reverse the exercise of discretion by the Court below. One main factor which the Court of appeal has also to determine when considering the question of production of additional evidence is that as a general principle additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacunae in presenting its case at a proper stage and to fill in gaps. It is true that the expression "to enable it to pronounce judgment" has no fixed import and its application would depend on individual judicial approach, for it seems to me to mean ability to pronounce a judgment satisfactory to the mind of the Court delivering it. The expression "for any other substantial cause" occurring in Rule 27 (1)(b) on a consideration of all the relevant factors that I can think of really means that if the appellate Court conscientiously requires interests of justice to be promoted by the production of additional evidence keeping in view the interests of the contesting parties, then it would be permissible to allow additional evidence. On this view the matter would really depend on the facts and circumstances of each case and no rigid test applicable to all cases can be formulated.

In the present case the document sought to be produced is not conclusive and indeed to allow it to be produced now would necessarily mean reopening the whole case, because the Respondents might well claim an opportunity for, rebutting the additional evidence. The contention that it is not possible for the Respondents to lead any evidence in rebuttal is amply met by the argument that even the additional evidence leaves it to the Court to draw an inference from all the facts and circumstances and the inference of facts already drawn by the Court below can by no means as a matter of law be considered to be erroneous even with the additional evidence being on the record. On this premise to admit additional evidence in this case would virtually amount to affording to the Appellant another chance of trying to convince the Court to give a decision in his favour. This would, in my opinion, not promote the true ends of justice, particularly when no convincing or cogent reason has been advanced as to why this document could not have been produced in the Court of first instance at the proper stage. The decision on the question of fact sought to be assailed was founded in the Court of first instance on the examination of the original pedigree-table and the location of the three relevant squares therein showing Dana, Sewa and their father. This decision cannot easily be assailed by the mere production of a certified copy of the khasra khana shumari sought to be produced on appeal on behalf of the Appellant. Indeed the production of this document would, if any thing, merely add to the confusion without clarifying the situation. I am therefore, unable to hold that the lower appellate Court has erroneously disallowed additional evidence.

For the foregoing reasons this appeal fails and is hereby dismissed, but without costs.