1931 JTR(SC) 36
1931 AIR(PC) 143 ; 1930 58 LawReportsInd.App. 254 ; 1931 10 ILR(Pat) 654 ; 1931 33 BomLR 1015 ; 1931 34 LW 76 ; 1931 AllLJ 513
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD MACMILLAN, AND SIR GEORGE LOWNDES.
PARSOTIM - Appellant
Versus
LAL MOHAR (DEFENDANTS) - Respondents
On Appeal from the High Court at Patna.
Decided On : March 26. 1931.
Appellate courts cannot admit additional evidence under Order xli, rule 27 of the Civil Procedure Code to allow a party to patch up a weak case; such evidence is admissible only if the Court itself finds an inherent lacuna in the existing evidence.
Act
Referred
:CIVIL PROCEDURE CODE
: S.107
(A) Civil Procedure Code - Section 107(1)(d) and Order xli, rule 27 - Admission of additional evidence by appellate Court - Provisions are 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 appellate Court - Under Order xli, rule 27(1)(b), additional evidence can be admitted only where the appellate Court "requires" it, meaning the Court finds it needful to enable the pronunciation of judgment or for any other substantial cause - The legitimate occasion for the exercise of this discretion is when, upon examining the evidence as it stands, some inherent lacuna or defect becomes apparent.
(B) Procedure for admitting additional evidence - Where the Court adopts the procedure of admitting fresh evidence, it is bound under Order xli, rule 27(2) to record its reasons for doing so, and under rule 29, it must specify the points to which the evidence is to be confined and record those points in its proceedings.
(C) Discretion of Court - The power to admit new evidence should be exercised very sparingly, and a primary requirement is that the evidence must have a direct and important bearing on a main issue in the case.
Facts of the case:
A suit was instituted for the redemption of a series of usufructuary mortgages. The respondents produced documents alleging a contract by which the mortgagors agreed to transfer their interest in the property. The trial court held that it was not proved that the documents were genuine and decreed the suit for redemption. On appeal, the respondents obtained leave from the appellate court to adduce additional evidence regarding the authenticity of a thumb-impression on one of the documents. The appellate court accepted this evidence, found the main contract to be genuine, and reversed the trial court's decree.
Findings of Court:
The additional evidence should not have been admitted because the respondents had ample opportunity to produce it in the trial court. The appellate court failed to comply with the mandatory requirements of recording reasons for admitting the evidence and specifying the points to which the evidence was confined. Furthermore, the proof of a thumb-impression on a secondary document was not decisive of the genuineness of the primary contract.
Issues: Whether the appellate court correctly exercised its discretion in admitting additional evidence to prove the authenticity of a document after the trial court had already ruled on its genuineness.
Ratio Decidendi: The court ruled that the power of an appellate court to admit additional evidence under Order xli, rule 27 is not to be used by a party to fill gaps in their case. The "requirement" for additional evidence must be a requirement of the Court itself, arising from an appreciation of the evidence as it stands and the discovery of an inherent lacuna.
Result: Appeal allowed.
(B) Procedure for admitting additional evidence - Where the Court adopts the procedure of admitting fresh evidence, it is bound under Order xli, rule 27(2) to record its reasons for doing so, and under rule 29, it must specify the points to which the evidence is to be confined and record those points in its proceedings.
(C) Discretion of Court - The power to admit new evidence should be exercised very sparingly, and a primary requirement is that the evidence must have a direct and important bearing on a main issue in the case.
Facts of the case:
A suit was instituted for the redemption of a series of usufructuary mortgages. The respondents produced documents alleging a contract by which the mortgagors agreed to transfer their interest in the property. The trial court held that it was not proved that the documents were genuine and decreed the suit for redemption. On appeal, the respondents obtained leave from the appellate court to adduce additional evidence regarding the authenticity of a thumb-impression on one of the documents. The appellate court accepted this evidence, found the main contract to be genuine, and reversed the trial court's decree.
Findings of Court:
The additional evidence should not have been admitted because the respondents had ample opportunity to produce it in the trial court. The appellate court failed to comply with the mandatory requirements of recording reasons for admitting the evidence and specifying the points to which the evidence was confined. Furthermore, the proof of a thumb-impression on a secondary document was not decisive of the genuineness of the primary contract.
Issues: Whether the appellate court correctly exercised its discretion in admitting additional evidence to prove the authenticity of a document after the trial court had already ruled on its genuineness.
Ratio Decidendi: The court ruled that the power of an appellate court to admit additional evidence under Order xli, rule 27 is not to be used by a party to fill gaps in their case. The "requirement" for additional evidence must be a requirement of the Court itself, arising from an appreciation of the evidence as it stands and the discovery of an inherent lacuna.
Result: Appeal allowed.
Evidence - Established that additional evidence in an appeal should only be admitted when the court, upon examining the existing evidence, finds an inherent lacuna or defect.
Jurisdiction - Discussed the Board's power to admit additional documents rejected by the High Court, which is distinct from the restrictions of the Civil Procedure Code.
Solicitors for appellants : Watkins & Hunter.
Judgement
Appeal (No. 12 of 1929) from a decree of the High Court (August 11, 1927) reversing a decree of the Subordinate Judge of Arrah (March 27, 1923).
This report is confined to that part of the judgment of the Judicial Committee which deals with the admission of additional evidence by the appellate Court, the appeal giving rise otherwise to questions of fact only.
7 Law Rep. 58 Ind. App. 254 ( 1930- 1931)
Parsotim V. Lal Mohar 98
The following short statement of the circumstances of the litigation is summarized from the judgment.
The suit was for the redemption of a series of usufructuary mortgages, executed between 1883 and 1914 in favour of the respondents by the members of a joint Hindu family represented by appellants Nos. 6 and 7. The property mortgaged was a separated share in a mauza. The suit was instituted on March 3, 1922, by appellants Nos. 1 to 5 as owners of the equity of redemption under mukarrari leases. The respondents by their written statement filed on April 28 denied the validity of the leases, and claimed an addition to the redemption money, which had been deposited in Court under s. 83 of the Transfer of Property Act, but did not question the right of the mortgagors to redeem. The mortgagors, appellants Nos. 6 and 7, who had been joined as defendants, were then joined as co-plaintiffs. After issues had been settled, on June 26, the respondents produced four documents, exhibits A, Al, A2 and A3. Exhibit A purported to be a contract, signed by appellant No. 6 on behalf of his joint family in November, 1917, by which the mortgagors agreed to transfer their interest in the property to the mortgagees in consideration of their fighting out survey proceedings with the tenants. Exhibits Al, A2, A3, also A4 (which was produced later), were similar documents, purporting to have been executed by the owners of other mortgaged shares in the property; none of the alleged executants were called at the trial. The respondents alleged that the documents had been mislaid.
In August the respondents filed a petition ascribing the written statement to a mistake by their pleader, and by leave amended the defence by pleading the contract contained in exhibit A.
The trial judge held that it was not proved that any of the documents in question was genuine, and made a decree for redemption.
The respondents, before the hearing of an appeal by them, applied to the High Court and obtained leave to adduce evidence as to the authenticity of the thumb-mark purporting to have been made in execution of exhibit A4, the appeal being adjourned meanwhile.
Subsequently the appeal was heard and was allowed, the suit being dismissed. The judgment, delivered by Das J. and concurred in by Allanson J., found that exhibit A was a genuine document.
1930. Nov. 17, 18, 20. De Gruyther K.C. and Dube for the appellants.
The respondents did not appear.
1931. March 26. The judgment of their Lordships was delivered by
SIR GEORGE LOWNDES. [Upon a detailed examination of the evidence their Lordships agreed with the judgment of the trial judge that exhibit A had not been proved and that consequently the defence failed. The relevancy of exhibits Al to A4 was very slight; if the respondents relied on them in confirmation of their story as to exhibit A it was for them to prove their due execution, which they had not done. After discussing the grounds upon which the judgment of Das J. was based, the present judgment continued as follows ] Their Lordships have no desire to pursue further their criticisms of this judgment They will only say that it is, in their opinion, unconvincing and unsatisfactory. They must, however, refer to one incident. The question of the thumb-impression of Musammat Bataso was apparently regarded as of importance, and the respondents seem to have applied, before the hearing in the appellate Court began, to be allowed to give evidence of its genuineness. The learned judges acceded to this application and adjourned the hearing to give the respondents an opportunity of
7 Law Rep. 58 Ind. App. 254 ( 1930- 1931)
Parsotim V. Lal Mohar 99
producing a genuine thumb-impression of the lady, and tendering expert evidence of comparison. When, after considerable delay, another thumb-impression was produced, it was found that exhibit A4 had been tampered with while in the custody of the Court, and the thumb-impression which had been on it was torn off. It is evident that Das J. suspected that this had been done by the appellants, though no evidence of any kind with regard to the incident was before him.
In their Lordships opinion, this additional evidence ought not to have been admitted. If the respondents desired to give evidence as to the thumb-impression, they had ample opportunity to do so in the trial Court. The provisions of s. 107, sub-s. 1 (d), of the Civil Procedure Code, as elucidated by Order xli.,
r. 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 appellate Court.
Turning to the provisions of r. 27, sub-clause 1 (a) has no application in the present case. Under r. 27 (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. This is the plain grammatical reading of the sub-clause. 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.5 This is laid down in the most positive terms by Lord Robertson in Kessowji Issur v. Great Indian Peninsular Ry. Co. (( 1907)
L. R. 34 I. A. 115, 122.) He was dealing with the words of s. 568 of the Code of 1882, but they are substantially the same as those of Order xli., r. 27, of the present Code. 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 the evidence as it stands. Wherever the Court adopts this procedure it is bound by r. 27 (2.) to record its reasons for so doing, and under r. 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. Their Lordships regret to find that, so far as the record discloses, none of these conditions was complied with in the present case.
Reference has been made in this connection to certain observations contained in the judgment delivered by Mr. Ameer Ali in Indrajit Pratab Sahi v. Amar Singh . (( 1923) L. R. 50 I. A. 183.) The question in that case was as to the power of the Board to admit additional documents which the High Court had rejected, and this power is not in any way restricted or governed by the provisions of the Code. If any incidental remarks appearing in this judgment have occasioned any doubt as to the meaning of the rules above referred to, or the conditions under which the discretion of the appellate Court is to be exercised, their Lordships desire to emphasize their view that the correct practice in the matter is as they have now defined it in accordance with the plain words of the Code.
They will only add that 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. It could hardly, their Lordships think, be suggested in the present case, that the mere proof of the genuineness of the thumb-impression exhibit on A4 could be in any way decisive of the genuineness of exhibit A. For the reasons given their Lordships have come to the clear conclusion that the decision of the trial Court was right, and they will humbly advise His Majesty that this appeal should be allowed and that the decree of the High Court should be set aside and that of the Subordinate Judge restored. The respondents must bear the costs of the appeal in the High Court and before this Board.