M. Ayyaswami and another vs S.P. Ganesan and another

K.A. Swami, C.J.—This appeal is preferred against the order dated 29.3.1994 passed by the learned single Judge on C.M.P. No. 14253

of 1993 filed in A.S. No. 330 of 1983. At the stage of admission, as the respondents are notified and the appeal lies in a narrow compass, it is

admitted and heard for final disposal.

The aforesaid suit was filed on 14.4.1981 by the appellants in A.S. No. 330 of 1983 for partition and separate possession of their share. The

prayer for partition and separate possession was based on the registered will dated 28.1.1969. The trial court has dismissed the suit on the ground

that the will have not been proved because none of the attestors to the will has been examined. In the appeal, the plaintiffs/appellants filed C.M.P.

No. 14253 of 1993 for permission to adduce additional evidence under O. 41, R. 27, CPC to examine one of the attestors to the will. Learned

single Judge has taken up that application separately and allowed it.

The question for consideration is as to whether the application for permission to adduce additional evidence, filed in the Appeal should have

been considered separately, or, it ought to have been considered along with the Appeal.

It is the settled position of law that an application filed in the Appeal for permission to adduce additional evidence has to be considered along

with the main appeal and not separately. The Privy Council has considered this question in ""Kessowji v. G.I.P. Railway"" (34 I.A. 115) and has

again reiterated the same view in ""Parsotim v. Lal Mohan"" (58 I.A. 254=A.I.R. (18) 1931 P.C. 143=34 L.W. 76 (P.C.). The Supreme Court in

Arjun Singh alias Puran Vs. Kartar Singh and others, after referring to the aforesaid decisions, has held that without examination of the evidence on

record, and without a decision is reached that the evidence as it stood disclosed a lacuna which the Court required to be filled up for pronouncing

its judgment, the appellate Court would not be justified in admitting the additional evidence under O. 41 R. 27 C.P. Code. The relevant portion of

the judgment of the Supreme Court is as follows:

The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in O.

41, R. 27 C.P.C., 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. Under O. 41, R. 27 it is the appellate Court that must require the evidence to enable it to pronounce judgment.

As laid down by the Privy Council in the well-known case of Kessowji v. G.I.P. Railway, 34 I.A. 115; (31 Dom, 381 (P.C.).

the legitimate occasion for the application of the present rule 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.

and they reiterated this view in stronger terms even in the later case of Parsotim v. Lal Mohan, 58 I.A. 254; (A.I.R. (18) 1931 P.C. 143=34 L.W.

76 (P.C). The true test, therefore, is whether the appellate Court is able to pronounce judgment on the materials before it without taking into

consideration the additional evidence sought to be adduced.

In the present case, there is nothing to show that there was any lacuna or gap which had to be filled up and that the appellate Court felt the need

for the omission being supplied so that it could pronounce a judgment; to put it the other way round, it does not appear and it was not stated, that

the District Judge fell himself unable to come to a decision without copies of the settlement registers that were sought to be put in before him for the

first time. On the other hand, the District Judge made up his mind to admit the certified cop(sic) the kami beshi and muntakhib asamiwar registers

even before he heard the appeal. ''The order allowing the appellant to call the additional evidence is dated 17.3.1942. The appeal was heard on

24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna

which the Court required to be filled up for pronouncing its judgment. In the circumstances, the learned Judges of the High Court were right in

holding that the District Judge was not justified in admitting this evidence under O. 41, R. 27.

Therefore, it is not possible to sustain the order allowing the petition filed for adducing additional evidence which has been considered separately,

without reference to the evidence on record and without considering the application along with the main appeal.

It is submitted by Learned Counsel for the petitioner in the C.M.P. who are respondents in this appeal, that in the light of the decision of the

Supreme Court in K. Venkataramiah Vs. A. Seetharama Reddy and Others, , as stated in paragraph 16 thereof, learned single judge is justified in

allowing the application. As we have held that the application ought to have been considered along with the hearing of the appeal, and as such, the

order is not in accordance with law, we do not propose to consider the aforesaid submission of the Learned Counsel.

For the reasons stated above, this appeal is allowed, the order dated 29.3.1994 passed on C.M.P. No. 14253 of 1993 filed in A.S. No. 330

of 1983 is set aside and C.M.P. No. 14253 of 1993 is remitted with a direction that the same be heard along with the main appeal. No costs. We

are informed by the Learned Counsel for the petitioners in the C.M.P. that the witness proposed to be examined who is one of the attestors of the

will is 73 years old; therefore, the appeal may be directed to be heard at the earliest, to ensure that important evidence is not lost. We, accordingly,

direct that the appeal be posted for hearing on 20.7.1994 in the top of the list.