Kavanna Vana Kowndappa Mudali vs Vanjammal

Wadsworth, J.—The Appellant was the defendant in a suit on a promissory note, dated 11th July, 1930 and pleaded two payments, one of

Rs. 60, dated 6th August, 1931 and another of Rs. 280 alleged to have been made by his brother on 7th August, 1931. The first Court accepted

the defendant''s plea of discharge. In the course of the cross-examination of the defendant''s witnesses a suggestion was made on behalf of the

plaintiff that the motive for a false plea of discharge and the falsification of accounts in support thereof was a previous quarrel between one

Sundaram Pillai, the accountant of the defendant''s father, and the husband of the plaintiff. The first Court discredited this suggestion remarking that

there was no document any evidence in support of the allegations made. When the matter came up in appeal the plaintiff filed a petition in the lower

Court praying for the admission in evidence of a long series of-documents mostly relating to the year 1927, that is to say, 3 years before the suit

promissory note, in order to illustrate and corroborate the allegation of enmity between Sundaram Pillai and the plaintiff''s husband as a motive for

the defendant to put forward a false story of discharge. The affidavit in support of this allegation alleges that the records in question were not in the

possession of the plaintiff at the time of the hearing of the suit in the first Court, and the reason assigned for putting forward this evidence in appeal

was in order to fill up the gap indicated in the lower Court''s judgment where it was pointed out that there was no documentary evidence with

reference to the suggestion referred to in cross-examination. The application was opposed and it was disposed of by the learned Subordinate

Judge by an order in following terms:

Admitted as they are essential for a satisfactory disposal of the appeal and were mentioned in the lower Court.

In the appellate judgment the learned Subordinate Judge refers to the circumstances for and against the story of discharge and then proceeds to

deal at length with the motive suggested by the plaintiff for the alleged fabrication of false entries in the accounts of the plaintiff''s brother. In dealing

with this motive theory the learned Subordinate Judge lays great emphasis on the corroborative evidence regarding the quarrel between Sundaram

Pillai and the plaintiff''s husband afforded by the new documents Ex. B series and there can be no doubt that the learned Subordinate Judge was

greatly influenced in arriving at a decision by the inference which he drew from those documents whereby he was constrained to hold that

Sundaram Pillai, who was the defendant''s father''s accountant and was present at the trial of the suit in the lower Court, had a motive for malice

towards the plaintiff''s husband and probably influenced the defendant and got him to fabricate the evidence in support of a false discharge story.

With reference to the question whether the learned Subordinate Judge was wrong in admitting this evidence, my attention has been drawn to the

well known case of (1931) L.R. 58 I.A. 254 (Privy Council) wherein the Judicial Committee point out that:

The provisions of Section 107 of the CPC as elucidated by Order 41, Rule 27 are clearly not intended to allow a litigant who has been

unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of Appeal.

Their Lordships after dealing with circumstances in which the additional evidence in appeal may well be admitted add that the power so

conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced

should be that it should have a direct and important bearing on a main issue in the case. Now it seems to me quite clear that this evidence was

admitted by the learned Subordinate Judge not because it was impossible to come to a conclusion on the evidence but because the lack of that

evidence took away from the plaintiff''s case corroboration which from the plaintiff''s point of view was highly desirable. There is no clear indication

that this evidence was not in fact available to the plaintiff at the original trial, although the plaintiff does assert that it was not then in her possession.

Its bearing on the issue of the validity of the plea of discharge was decidedly indirect. All that this evidence went to prove was that Sundaram Pillai

was an enemy of the plaintiff''s husband. Sundaram Pillai was himself not a party and it was only indirectly that the Court might infer that he might

have influenced the defendant to put forward a false case. It certainly cannot be said that this evidence had a direct and important bearing on the

main issue in the case. A Bench of the Patna High Court has further defined the limits within which the appellate Court''s power of admitting

additional evidence can be exercised. In Kalika Dutt Mandar v. Tulsi Mandar (1916) 1 P.L.J. 435 it is observed that the provision of Rule 27(b)

which permits the Appellate Court to admit additional evidence if it requires it to enable it to pronounce judgment, does not mean that additional

evidence should be admitted in appeal in order to enable the Appellate Court to pronounce judgment in favour of a particular party. With this

observation I find myself in respectful agreement. It is not within the power of an Appellate Court to admit evidence which might have been

adduced by a party in support of the contention in the lower Court merely because the lower Court has drawn an adverse inference from the non-

production of this evidence more especially where there are no special circumstances which excuse the party for not producing that evidence at the

proper time. I hold that the admission of this additional evidence by the learned Subordinate Judge in this case is not justified under the provisions

of Order 41, Rule 27.

There are further criticisms which have been made regarding the learned Subordinate Judge''s procedure. In pursuing the question of motive the

learned Subordinate Judge seems to have come to the conclusion that this Sundaram Pillai was a man who would not scruple to fabricate accounts

and he observes:

On the other hand, he appears to be a man of shady character and his conduct has come before this Court in connection with other matters. And

in a recent case O.S. No. 35 of 1932 he was found to be guilty of forgery and a complaint has also been laid against him to prosecute him for

perjury, fabrication of false evidence and certain other allied offences.

I am of opinion that the learned Subordinate Judge was not justified in importing into his judgment facts which have come to his knowledge in

the trial of other and completely unconnected cases, as materials on which to base his estimate of the probability that a particular individual would

have encouraged the defendant in this case to fabricate false accounts. The conclusions in this case should have been based solely on the evidence

in this case and not on outside information, however acquired. It is also pointed out that there is an error of fact regarding Ex. C series which are

some of the additional documents filed in appeal. They relate to proceedings taken with reference to the accounts of the defendant''s brother in

another case. The learned Subordinate Judge erroneously refers to this evidence as evidence throwing a doubt on the defendant''s own accounts

which were not in question in Ex. C series.

It seems to me therefore, that the finding of fact arrived at by the learned Subordinate Judge has been based very largely on evidence which

should not have been admitted and on matters which were not in evidence. In the circumstances that finding must be set aside and I therefore allow

the appeal and remand the appeal for disposal by the lower appellate Court in the light of the observations contained in this judgment. Costs will

abide the result.