M.Shanmughasundaram vs N.T.P. Subburaya Chettiar

By consent of both the counsel, the revision is taken up for final disposal.

The revision has been filed by the petitioner against the order of the Appellate Authority in I.A.No.100 of 1994 in R.C.A.No.7 of 1993 wherein

additional evidence has been permitted. The only objection raised by the counsel for the petitioner is that in view of the judgment of a Division

Bench of this Court reported in M.Ayyasami v. S.P.Ganesan 1994 (2) L.W. 376 the application filed under O.41, Rule 27 seeking permission to

adduce additional evidence cannot be disposed of independently and the said application has to be taken up along with the appeal. The lower

court is not correct in disposing of the application independently. In fact the objection is well founded. The Division Bench, in Ayyaswami''s case,

1994 (2) L.W. 376, has held as follows:

It is 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, L.R.34 IndAp 115: I.L.R.31 Bom.

381:17 M.L.J. 347 and has again reiterated the same view in AIR 1931 143 (Privy Council) . The Supreme Court in Arjan Singh v. Kartar Singh,

(1951) 2 SCR 258 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 require to be filed up for pronouncing its judgment, the appellate court

would not be justified in admitting the additional evidence under O.41, Rule 27, Civil Procedure Code. The relevant portion of the judgment of the

Supreme Court 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 on

O.41,Rule 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, Rule 27 it is 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 L.R. 34 IndAp 115: I.L.R.31 Bom. 381:17 M.L.J.347.

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 AIR 1931 143 (Privy Council) . This 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 Direct Judge felt himself unable to come to 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 copies of the Kami beshi and muntakhibasami war register

seven 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 Direct Judge was not justified in admitting this evidence under O.41, Rule 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"".

In view of the above principle laid down in the abovesaid judgment I am of the view that the order of the lower court is liable to be set aside and

accordingly, the civil revision petition is allowed. I.A.No.100 of 1994 in R.C.A.No.7 of 1993 is restored on file and the appellate authority is

directed to dispose of the said application along with the main appeal, in accordance with law.