Muniyappa vs S.V. Ramakrishna

Padmanabhiah, J.—This is an appeal preferred by the Appellant, Defendant against the decision of the learned First Additional District Judge, Bangalore, in. R.A. 100/ 54, sitting aside the judgment and decree in O.S. 66/53 on the file of the learned Principal Subordinate Judge, Bangalore, and remanding the suit for fresh disposal.

The Respondent was the Plaintiff and the Appellant the Defendant in O.S. 66/53. Plaintiff''s suit was on a pronote. The defense was denial of execution and of receipt of consideration. The Defendant contended that he does not know English that the signature in English on the suit pro-note was not his and that he had not executed the pronote.

This contention found favour with the learned Subordinate Judge who dismissed the suit. The Plaintiff took up this in appeal and the learned Additional District Judge set aside the judgment and decree of the Court below and remanded the suit for fresh disposal according to law. As against that order of remand, this appeal is filed.

The main question that arises for consideration is whether the order of remand can or cannot be supported. It is seen from a perusal of the judgment of the lower appellate Court that after considering the evidence in the case and hearing arguments, the learned District Judge felt that it was necessary in the interests of justice to allow the Plaintiff to adduce additional evidence, and he accordingly set aside the judgment and decree and remanded the suit.

The contention urged on the side of the Appellant is that an application filed by the Plaintiff Respondent as per I. A. No. 1 under Order 41, Rule 27, praying for permission to adduce additional evidence was dismissed by the very Judge and that the lower appellate Court had no jurisdiction to grant the same relief to the Plaintiff from was previously refused. We are of opinion that the dismissal of the previous application cannot '' be a bar to the order of remand No doubt, it is true that Plaintiff''s prayer for adducing additional evidence was refused by the lower appellate Court by dismissing Plaintiff''s application, L A. No. l. But it is not correct to say that that Court had no Jurisdiction to remand the suit for additional evidence because the previous application filed by the Plaintiff was dismissed.

Under Order 41, Rule 27, Clause (b), the appellate Court has jurisdiction and discretion to direct that additional evidence, either oral or documentary, be produced. Under this provision, the admissibility of additional evidence does not depend upon the relevancy to the issue on hand or on the fact whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause.

It seen that the expression ''substantial cause'' confers a wide discretion on the appellate Court to admit additional evidence when the ends of justice require it, I. A. No. 1 was dismissed by the learned Judge earlier for reasons other than those for which he has now granted the same relief. Therefore, we are of opinion that the dismissal of I; A. No. 1 is no bar to the appellate Court granting the same relief under Order 41, Rule (27).

What the Plaintiff wants this case is to summon certain documents bearing the signature of the Defendant in English an1 to examine the Handwriting Expert to prove that the signature in the suit pronote is that of the Defendant. From the affidavit filed by the Plaintiff, it is clear, that some of the documents which he now wants to summon were not within his knowledge at the time when the case was disposed of in the trial Court.

When a party has discovered new aril important evidence which was not available at the trial, the appellate Court is entitled to admit such evidence under Order 41 Rule 27 (b). The evidence sought to be adduced appears to be quite essential and ''material to come to a correct conclusion with respect to the matter in dispute.

The Defendant will not be prejudiced in any way by the order of remand inasmuch as he will have plenty of opportunity to rebut the evidence that the Plaintiff may adduce. Under these circumstances, we are of opinion that the order of remand should be upheld on payment of soma costs to the Appellant.

In the result, the order of remand is confirmed and this appeal stands dismissed. However, we direct that the Plaintiff shall pay a sum of Rs. 25/- as costs to the Appellant Defendant before he is permitted to adduce evidence.