Sankara Warrie vs Radha

P. Govinda Menon, J.—The petitioner in this revision had filed a suit O. S. 210/56 on the file of the District Munsiff, Trichue for setting aside an order of maintenance passed against him u/s 488 of the Code of Criminal Procedure. The suit was decreed and the matter was taken on appeal in A. S. 151/58 before the 2nd Additional District Judge, Trichur. After the appeal was partly heard the respondent filed a petition for permission to produce additional evidence and the learned Judge passed a one line order "Granted". Aggrieved with the order the respondent in the appeal has come up in revision.

A preliminary objection is raised that the revision petition will not lie as the costs ordered by the court when the petition was allowed had already been received by the advocate for the petitioner. The learned counsel for the petitioner contends that the order that was passed by the learned Judge was not a conditional order, that the payment of costs had not been made a part of the order granting the prayer for examining additional witnesses and so even if his client had received costs that would not preclude him from filing this revision petition.

In Gadde Venkatarayudu and Others Vs. Anumolu Chinna Ramakrishnayya and Others, this question came up for consideration and after an exhaustive review of the case law the learned Judges held:

"The rule that when an order shows plainly that it is intended to take effect in its entirety and that several parts of it depend upon each other, a person cannot adopt one part and repudiate an-other, does not apply to a case where the various directions in an order or judgment are Intended to be distinct and independent of each other. Thus, if a suit is dismissed but the plaintiff is awarded costs, he is not precluded from impeaching the judgment by receiving the costs."

In another case, Sree Mahant Prayag Dossjee Varu Vs. Raja Venkata Perumal, Pandalai, J., followed the 1930 Madras case and pointed out that:

"In every particular case it must be ascertained whether the costs or other benefit accepted by a party is in fact and substance a part of the entire order of which after accepting the part favourable to him, a party puts it beyond his power to attack the rest....."

The same view was taken in the case, Nalinakha Sinha Vs. Ram Taran Pal and Others, where it is observed:

"If an interlocutory order is made in favour of one party but for some reason costs are allowed unconditionally to the unsuccessful party, the un-successful party is not precluded from questioning the order on appeal by accepting the costs of the hearing."

In this case it is not seen from the order that any cost was ordered. The order that is passed is an unconditional order that the prayer in the petition has been granted. It is only from the notes paper that it is seen that costs have been ordered, and it is not disputed that the cost so ordered was received by the petitioner''s advocate. But when costs are allowed unconditionally and the payment was not made as a condition precedent to the operation of the rest of the order, there will be no bar to the petitioner seeking his remedies against the order.

With regard to the merits of the petition the order passed by the learned Judge is clearly unsustainable in law. Order 41, Rule 27 relates to the production of additional evidence in the appellate court. Order 41, Rule 27 C. P. C. reads as follows:

"27 (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court. But if.....

(a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(b) the party seeking to adduce additional evidence satisfies the Appellate Court that such evidence notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed, or

(c) the appellate court requires any documents to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Where additional evidence is allowed to he produced by an Appellate Court, the court shall record the reason for its admission."

The evidence that is sought to be tendered must be either that which has been refused in the trial court or such evidence notwithstanding the exercise of due diligence was not within his knowledge or could not be produced at or before the decree was passed or that the Appellate Court requires any document or witness to be examined.

Clause (2) contains an imperative provision that where additional evidence is allowed the court shall record the reason for its admission. Therefore it is clear that the order in question does not satisfy the requirements of Order 41, Rule 27. No reasons are recorded for admitting such additional evidence nor has the learned judge exercised the judicial discretion as required under the rule.

It is only necessary to refer to the decision in AIR 1931 143 (Privy Council) where it is observed:

"The provisions of Section 107 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. Under Rule 27 Clause (1) (b) it is only where the appellate court "requires" it (i.e. finds it needful that additional evidence can be admitted. It may be required to enable the court to pronounce judgment or for any other substantial cause, but in either case it must be the court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence but ''when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent''. It may well be that the defect may be pointed out by a party, or that a party may move the court to supply the defect but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing, and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. 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."

To the same effect is the decision in Arjan Singh v. Kartar Singh, (1951) 2 SCR 258

"The discretion to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order 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 Order 41, Rule 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 Ind App 115 : ILR 31 Bom 381 (PC):

"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 58 Ind App 254 : AIR 1931 143 (Privy Council) 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".

It is not necessary to refer to the other decisions on the point. It is clear that the learned Judge has not conformed to the provisions of Order 41, Rules 27 and 29 and the order is unsustainable. The order of the learned Judge is therefore set aside and remanded for fresh disposal according to law and in the light of the observations made above after giving an opportunity to the parties to be heard. There will he no order as to costs.