Venku Reddi vs Reddi and Others

Chandra Reddy, J.—This second Appeal is directed againnst the judgment of the Subordinate Judge of rare confirming that of the District Munsif, dismissing O. S. No. 580 of 1949. The tits filed a suit for recovery of possession of ''lain A scheduled property and to direct the indents to pay him Rs. 72/- by way of rent for are together with interest thereon and also for direction to render an account of future rents jproflts till the date of delivery of possession.

The suit was based on a sale deed executed by Bhima Sankarareddy in favour of the Plaintiff 1-6-1945 for a consideration of Rs. 400/-. It is ;ited in this sale deed that the vendor acquired !e thereto under Ex. A-2 dated 29-5-1945. In Kx. "-, there is a reference to the property having a purchased from one M. Balaramireddy.

The suit was contested mainly on the plea to Raghavareddy, the alien or, under Ex. A-2 had title to the suit property and that it really be-geed to., the Defendants though it was purchased the name of one Lakshmi Dcvamma in the year 1. According to, the Defendants, the property put in the name of the said Lakshmi Devamma ying regard to the relationship that existed been them.

As the Plaintiff could not prove the title of ghavareddy to the suit property the trial Court missed the suit, though in its opinion the de-dents have not made out their case that the party was: originally purchased for their been-in the name of Lakshmidevamma.

The lower appellate Court agreed with this elusion, on appeal by the aggrieved Plaintiff, the result that the dismissal of the suit was by the appellate Court.

This second appeal is brought by the plain-is dissatisfied with this judgment. To that the Plaintiff has title to this property to have some documents admitted in this Peal. It is not disputed that on the "A record the judgments of the Courts be-Though. "she Defendants have not established Vnami the Plaintiff will not be en-succeed, as it is well-established that the succeed only on the strength of his depend upon the weak in the defence.

urged by Mr. Kuppuswamy in sup application to admit some documents by way of additional evidence is that if these documents are excluded the Appellant will be deprived of a valuable right. The chief point for consideration is whether there are any grounds for admission of these documents as additional evidence in the appeal.

The powers of an appellate Court m this regard are controlled by the provisions of Order 41 Rule 27, Code of Civil Procedure.. The question for consideration is whether the instant case can .fall under any of the categories listed in that rule. Mr. Kuppuswamy suggests that I might admit these documents under Clause (c) of Rule 27. It is difficult to bring the present application within the operation of Clause (c) because it cannot be postulated that these documents are necessary to enable me to pronounce a judgment.

It may be that the judgment without these documents will be against the Appellant but that) is not the same thing as saying that they are essential to enable a Court to reach a decision. In! my opinion, Clause (c) governs cases where the Court thinks that certain documents are necessary to enable it to make up its mind.

Mr. Kuppuswamy drew my attention to a judgment of a Bench of the Madras High Court in Gaddam Paramasivudu v. Mulakala Subbanna, 1919 Mad WN 455: (AIR 1919 Mad 17) (A) which decided that the High Court should admit additional evidence in a second appeal in order to avoid conflicting decrees being passed between the same parties and argues that additional evidence in this �case could be admitted.

On the other side a judgment of P.V. Subba Raja Vs. S.S. Narayana Raja and Others, which lays down that the second appellate Court could not admit additional evidence !;.nd give its decision on a question ot fact is relied on. It is stated by Krishnaswamy Naidu J. thus:

Apart from the decision cited, the provisions of Section 103 are sufficiently clear to exclude the operation of Order 41, It. 27 and their applicability to appeals filed under Order 42, Code of Civil Procedure, It is not every provision in Order 41 that could be said to automatically apply in Order 41 to a proceeding in second appeal by virtue of Order 42 Rule 1 but only such provisions as may reasonably be applied having in view the provisions of Sections 100 and 103, and the limited scope of the jurisdiction of the second appellate Court in matters affecting questions of facts. The proper view to be taken therefore is that it is not competent to admit additional evidence in second appeal.

It seems to me that Kirishnaswamy Naidu J. has stated the proposition very broadly and is opposed to the ruling of the Bench decision mentioned supra. The Bench judgment is not even noticed in the judgment of Krishnaswamy Naidu J. I am in respectful agreement with the ratio of 1919 Mad WN 455: (AIR 1919 Mad 17) (A). I do not think there is anything either in Section 103 or in Order 41 Rule 27, Code of Civil Procedure, which excludes the applicability of the latter provision to second appeals.

The terms of Rule 27 are general in application and my view is that in appropriate case it is open to this Court in second appeal to admit additional evidence. It may be that this Court will be reluctant to adopt the course indicated in that rule unless there are special circumstances. But it is different to say that it is not competent for a second appellate Court to let in additional evidence, under any circumstances.

However, that does not, in this case, help the Appellant. I have already stated that Clause (c) of that rule cannot apply to this case, nor can the Appellant seek to'' bring it under Clause (b). It is not even suggested that, despite the exercise of due diligence, these documents were not within his knowledge and therefore he could not produce them. The written statement raise?; the pica that the vendor of the Plaintiff had no title to the suit property. So he knew that he had to prove the title of his vendor, but yet he had not chosen to do so. He did not adopt this course even in the lower appellate Court. Having slept over this matter for several years, the Appellant now thinks of moving this Court for the admission of additional evidence. . This Court will not ordinarily admit documents which will necessitate the remand of the case to the trial Court for a rehearing and re-1 opening of the suit. I do not think there would be any justification for me to grant the request in this behalf.

In these circumstances the petition for admission of additional evidence is dismissed. No order as to costs in this petition. The consequence is that the appeal also has to be dismissed with costs.