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Case Number

Review Civil Misc. Petn. S.R No. 73520 of 1989 in S.A No. 428 of 1985*

Attorney(S)

For the Appellant: S.K.Sastry, T.Virabhadrayya, Advocates.

Judges

Syed Shah Mohammed Quadri
Ranga Reddy, JJ.

Acts

provisions of Sections 100 to 103 and O. 42, R. 1, C.P.C apply. Section 100
provisions of O. 16, C.P.C Section 96, C.P.C
sub-section (5) of the S. 100, C.P.C
Clauses (a) and (b) of Rule 27
Order 13, Rule 1, C.P.C
Rules of Order 41
Rule 27 of O. 41
Rule 2 of O. 13

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This review Civil Miscellaneous Petition (C.M.P.) was referred to a Division Bench because Neeladri Rao, J. considered that maintainability of the review petition depended on whether additional evidence can be permitted at the stage of a second appeal.

The underlying litigation concerned a suit for possession of the plaint-schedule premises. The trial Court decreed the suit; the first appellate Court confirmed that judgment and decree; the second appeal by the 1st defendant was dismissed. Thereafter the 1st defendant (the review-petitioner) filed a review petition on the ground that she had discovered new and important evidence which, despite due diligence, was not within her knowledge and therefore could not have been produced at the time the decree was passed in the second appeal.

Legal Issues Presented

Whether additional evidence (oral or documentary) can be admitted at the stage of a second appeal (including for the purposes of a review of a second appeal).
Whether discovery of a new and important fact after a second appeal (and despite due diligence not producible earlier) can form a ground for review of the second appeal judgment.

Arguments of the Parties

Review-Petitioner's Arguments (as summarized from the opinion)

Counsel for the review-petitioner, Sri T. Veerabhadraiah, submitted that Order 42, Rule 1, C.P.C. makes the provisions of Order 41 applicable to second appeals "so far as may be", and therefore the petitioner is entitled to invoke Order 41, Rule 27, C.P.C. to adduce additional evidence in the second appeal.
He further contended that adducing additional evidence on the basis of discovery of a new and important fact is also a ground for seeking review of the second appeal judgment.

Respondent's Arguments (as summarized from the opinion)

Counsel for the respondent, Sri M.S.K. Sastry, argued that evidence cannot be reassessed in a second appeal; therefore the petitioner was not entitled to file additional evidence in the second appeal and cannot be permitted to seek review of the second appeal judgment on the ground of discovery of new evidence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Paramasivudu v. Subbanna, AIR 1919 Mad 17	The Division Bench held that no general rule can be laid down for admission of additional evidence in second appeal; each case must be dealt with on its merits. On the facts of that case the Division Bench admitted a judgment that did not exist at the time of the decree.	The Court noted that Paramasivudu declined to lay down a general principle on admissibility, and on its facts admitted evidence. The present Court observed the case did not consider the scope of Ss. 100 and 103 as they then stood and accordingly treated Paramasivudu as limited to its facts.
Viathinatha v. Kuppa, AIR 1919 Mad 1166	A Full Bench by majority held that the High Court could not interfere with an order of the lower appellate Court rejecting an application to admit material evidence discovered after the decree; the precise question of admissibility in second appeal did not arise for decision.	The opinion records the decision and observes that the specific question under consideration in the present review was not decided by that Full Bench.
Subba Raja v. Narayana Raja, AIR 1954 Mad 1074	Held that, having regard to Section 103, C.P.C., the second appellate Court could not admit evidence and give its decisions on a question of fact; Section 103 was held sufficiently clear to exclude operation of Order 41, Rule 27.	The Court treated Subba Raja as adopting the view that second appeals are restricted by S.103 so as to exclude R.27's operation; it was identified as conflicting with Venku Reddi and discussed in the analysis.
Venku Reddi v. Pichi Reddi, AIR 1956 Andh Pra 250	Chandra Reddy, J. (in dissent) held that nothing in S.103 or O.41 R.27 excludes applicability of R.27 to second appeals, so in an appropriate case the High Court could admit additional evidence in second appeal.	The Court recorded that Venku Reddi took a contrary view to Subba Raja, but concluded (in light of later Supreme Court authority) that the view in Venku Reddi is no longer good law.
Jasubha Manubha v. Raisinh Bapubha, AIR 1976 Guj 140	A learned single Judge of the Gujarat High Court dissented from the view in Venku Reddi (i.e., opposed admission of additional evidence in second appeal). This decision was rendered before amendment of Ss. 100 and 103.	The Court noted this dissenting authority but observed it too was before the statutory amendments and therefore treated its precedential effect in that context.
Balai Chandra v. Shewdhari Jadav, AIR 1978 SC 1062	The Supreme Court held that a court hearing a second appeal (after granting amendment of pleadings under Letters Patent or otherwise) could not take over the functions of the trial court/first appellate court and re-appreciate evidence; Section 103 limits the High Court's power to issues which can be determined on the evidence on record.	This decision was treated as authoritative and decisive. The Court relied on Balai Chandra to hold that Venku Reddi's contrary view is no longer good law and to conclude that additional evidence cannot be admitted in a second appeal.

Court's Reasoning and Analysis

The Court proceeded by first outlining the statutory and procedural framework governing production of evidence and the scope of appeals:

Order 13, Rules 1 and 2 C.P.C.: parties must produce documentary evidence at or before settlement of issues; documentary evidence not produced according to Rule 1 cannot be received later except for good cause, and the Court must record reasons for receiving it.
Oral evidence may be adduced after settlement of issues subject to Order 16.
Section 96 and Order 41 govern appeals from original decrees; Order 41, Rule 27 generally prohibits parties from producing additional evidence in the appellate Court, subject to specified exceptions in clauses (a) and (b) of Rule 27.
Sections 100 to 103 and Order 42, Rule 1 govern second appeals: Section 100 permits second appeal to the High Court only if the case involves a substantial question of law; Order 42 provides that the Rules of Order 41 apply to second appeals “so far as may be”.
Section 103 grants a narrow, truncated power to the High Court in respect of questions of fact: the High Court may determine issues of fact only if necessary for disposal of the appeal, where the evidence on the record is sufficient, or where issues were undetermined or wrongly determined by the lower Courts by reason of some question of law arising in the second appeal.

From this statutory canvas the Court reasoned as follows:

The scope of a second appeal is confined to substantial questions of law; findings of fact by the first appellate Court are generally binding on the High Court.
Section 103's limited grant of power to determine questions of fact depends on sufficiency of evidence on the record; it does not contemplate fresh evidence being led in the second appeal to re-open factual determination.
Although Order 42 makes Order 41 applicable to second appeals "so far as may be", that qualification means the general rule in Order 41 (including Rule 27) must yield to the specific limitations imposed by Sections 100 and 103 when a second appeal is concerned.
Surveying prior decisions, the Court recognized conflicting authorities. It observed that earlier Madras precedents (Paramasivudu, Viathinatha, Subba Raja) took varied positions, and that Chandra Reddy, J.'s view in Venku Reddi favoured admission of additional evidence in appropriate second appeals.
However, the Court placed decisive reliance on the Supreme Court's decision in Balai Chandra v. Shewdhari Jadav (AIR 1978 SC 1062), which held that a Court hearing a second appeal cannot undertake the functions of the trial or first appellate Court and re-appreciate evidence; S.103 limits the High Court's fact-finding power to the evidence on record.
Given Balai Chandra’s authoritative pronouncement, the Court concluded that the earlier dissenting view (Venku Reddi) is no longer good law. Consequently, there is no scope in a second appeal for leading additional evidence, and therefore no scope to admit such evidence in a review petition of a second appeal on the ground of discovery of new material.

The Court limited its analysis to the statutory text and adopted the position that the High Court’s fact-determination power on second appeal is confined to existing record evidence and to the narrow categories in S.103.

Holding and Implications

Holding: Additional evidence cannot be admitted in a second appeal, and an application to admit additional evidence in a review petition of a second appeal cannot be entertained.

Implications:

Direct effect on the parties: The review petition based on the ground of discovery of new and important evidence in respect of the second appeal is not maintainable to the extent that it seeks admission of such additional evidence; the Court will not permit reception of additional evidence in that context.
On precedential effect: The Court held that, in view of the Supreme Court decision in Balai Chandra v. Shewdhari Jadav (AIR 1978 SC 1062), the contrary view expressed by Chandra Reddy, J. in Venku Reddi (AIR 1956 Andhra 250) is no longer good law. The opinion therefore adopts and applies the principle that the High Court's power in second appeals is limited by S.103 and does not extend to rehearing or reappreciation of evidence by admitting fresh evidence.
No broad new rule beyond application of existing statutory provisions and Supreme Court authority was established; the decision applies those authorities to deny admission of additional evidence in second appeals (and in reviews of second appeals where the review ground is newly discovered evidence).

Question answered.

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Anisetti Bhagyavathi v. Andaluri Satyanarayana And Others

Syed Shah Mohammed Quadri, J.:— This review C.M.P is referred to a Division Bench by Neeladri Rao, J. observing that maintainability of the review petition depends on the question whether additional evidence can be permitted at the stage of second appeal. The learned Judge noticed that on the question whether additional evidence can be admitted at the stage of second appeal the judgment of a learned single Judge of this Court in Venku Reddi v. Pichi Reddi, AIR 1956 Andh Pra 250 is in conflict with the judgment of the Madras High Court in Subba Raja v. Narayana Raja, AIR 1954 Mad 1074 which was delivered prior to 5-7-1954.

2. The second appeal arose out of the suit filed for possession of plaint schedule premises. The suit was decreed by the trial Court. The first appellate Court confirmed the judgment and decree of the trial Court. The second appeal by the 1st defendant was dismissed. Thereafter the review petition was filed by the 1st defendant on the ground that she discovered a new and important evidence which after exercise of due diligence was not within her knowledge and so it could not be produced by her at the time the decree was passed in the second appeal.

3. Sri T. Veerabhadraiah, the learned counsel for the review-petitioner, submits that O. 42, R. 1, C.P.C makes the provisions of O. 41, C.P.C applicable to second appeals, therefore, the petitioner is entitled to invoke the provisions of O. 41, R. 27, C.P.C for adducing additional evidence which is a discovery of a new and important fact and this is also one of the grounds for seeking review.

4. Sri M.S.K Sastry, the learned counsel for the respondent, on the other hand, contends that as the evidence cannot be reassessed in a second appeal the petitioner was not entitled to file additional evidence in the second appeal, therefore, he cannot be permitted to seek review of the judgment in second appeal on the ground of discovery of a new and important fact.

5. To appreciate the question that arises in this review petition, viz., whether additional evidence can be allowed to be let in second appeal, it would be appropriate to refer to the scheme of the Code with regard to production of the evidence in the suit/appeal. In regard to documentary evidence Order 13, Rule 1, C.P.C enjoins that the parties or their pleaders shall produce at or before the settlement of issues all the documentary evidence of every description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced. Rule 2 of O. 13 directs that no documentary evidence in possession or power of any party which should have been, but has not been, produced in accordance with the requirements of Rule 1, shall be received at any subsequent stage of the proceeding unless good cause is shown to the satisfaction of the Court for the non-production thereof and the Court is required to record the reason for receiving such evidence. However, this does not apply to documents which are produced for cross-examination of the witnesses of the other party, or documents which are handed over to a witness merely to refresh his memory, in so far as the oral evidence is concerned it can be adduced after the settlement of issues in accordance with the provisions of O. 16, C.P.C Section 96, C.P.C provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Order 41 deals with the procedure regarding appeals from original decrees. From a combined reading of S. 96 and O. 41, Rr. 1 and 2, C.P.C it is clear that the ground of objection to the decree under appeal can be both on the questions of fact as well as on the questions of law. Rule 27 of O. 41 declares that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. Clauses (a) and (b) of Rule 27 provide circumstances under which the appellate Court may allow additional evidence to be produced by the parties. In regard to the appeals against the appellate decrees, commonly known as ‘second appeals’, the provisions of Sections 100 to 103 and O. 42, R. 1, C.P.C apply. Section 100 provides second appeal to the High Court from every decree passed in appeal by any Court subordinate to it only if the High Court is satisfied that the case involves a substantial question of law. The appellant is required to state precisely the substantial question of law involved in the appeal and the High Court is required to formulate the question if it is satisfied that a substantial question of law is involved in the appeal. The appeal is to be heard on the question so framed. However, the respondent is entitled to argue that the case does not involve the question as framed. From the Proviso to sub-section (5) of the S. 100, C.P.C also it is clear that the power of the Court to hear the second appeal extends only to substantial questions of law raised at the time of hearing though not framed by it initially, if it is satisfied that the case involves such questions after recording reasons. Order 42 which prescribes the procedure for hearing of the second appeal says that the Rules of Order 41 shall apply, so far as may be, to appeals from appellate decrees.

6. It is in this background we have to consider the question of admission of the additional evidence in the second appeal. It has been noticed above that the scope of the second appeal is confined to substantial questions of law framed at the stage of admission of the appeal or subsequently at the time of hearing by the High Court. The finding of fact recorded by the first appellate Court are binding on the High Court. Section 103 gives a very truncated power to the High Court in regard to the issues of fact. It gives discretion to the High Court to determine any issues necessary for the disposal of the appeal which has not been determined by the lower appellate Court or the Court of first instance or which has been wrongly determined by the Courts below by reason of a decision on such question of law which had arisen in the second appeal. From the provision of Section 103 it is clear that the scope for determination of the issue necessary for the disposal of the second appeal is available only if the evidence on record is sufficient. There is thus, no scope for leading of additional evidence in the second appeal.

7. We shall now refer to the decisions cited at the bar.

8. In Paramasivudu v. Subbanna, AIR 1919 Mad 17 a Division Bench of Madras High Court held that no general rule could be laid down with regard to admission of additional evidence in second appeal and that each case had to be dealt with with reference to its own merits and the existence of the sufficient cause referred to in O. 41, R. 27, C.P.C On the facts of that case the Bench held that there could be no objection to receive the judgment of the High Court which was not in existence at the time of passing of decree and which required no further evidence explain it and which could not be produced earalier because it was not in existence either on the ground of principle or convenience.

9. In Viathinatha v. Kuppa, AIR 1919 Mad 1166 a Full Bench of the Madras High Court by majority held that the High Court could not interfere with an order of the lower appellate Court rejecting an application made to it by a party to the appeal for admission of certain material evidence discovered since the date of decree appealed against which was not available to the said party with the exercise of diligence during the trial of the suit. The question whether additional evidence can be admitted in second appeal did not arise for consideration of the learned Judges.

10. In Subba Raja's case AIR 1954 Mad 1074) (supra) the learned Judge of the Madras High Court held that having regard to the provisions of S. 103, C.P.C the second appellate Court could not admit evidence and give its decisions on a question of fact and that the provisions of S. 103 were sufficiently clear to exclude the operation of O. 41, R. 27, C.P.C This judgment was dissented by Chandra Reddy, J. (as he then was) in Venku Reddi's case (AIR 1956 Andh Pra 250) (supra). In that case the learned Judge took the view that there is nothing either in S. 103 or in O. 41, R. 27, C.P.C which excludes the applicability of the latter provision to the second appeals and that the terms of R. 27, C.P.C are general in application and in an appropriate case it would be open to the High Court in the second appeal to admit additional evidence. It was pointed out that the learned single Judge of the Madras High Court in Subba Raja's case (AIR 1954 Mad 1074) (supra) did not notice the judgment of the Division Bench of the Madras High Court in Pramasivudu's case (AIR 1919 Mad 17) (supra) and that the principle was stated by him very broadly which was opposed to the said judgment. It may be noted here that the Division Bench of the Madras High Court in Pramasivudu's case (supra) declined to lay down a general principle on the question of admissibility of additional evidence in second appeal; however on the facts of that case admitted the additional evidence in the second appeal. The learned Judges did not consider the scope of the power of the High Court under Ss. 100 and 103, C.P.C as they stood then. Having regard to the amended provisions of Ss. 100 and 103, I.P.C we are clear in our view that the High Court in hearing second appeal cannot re-appraise the evidence and determine the question of fact.

11. In Jasubha Manubha v. Raisinh Bapubha, AIR 1976 Guj 140 a learned single Judge of the Gujarat High Court dissented from the view taken by Chandra Reddy, J. (as he then was) in Venku Reddi's case, AIR 1956 Andhra 250 (supra). Even this judgment was before the amendment of Ss. 100 and 103, C.P.C

12. In Balai Chandra v. Shewdhari Jadav, AIR 1978 SC 1062 the Supreme Court considered the question whether the High Court of Calcutta was right in taking additional evidence under O. 41, R. 27 after allowing amendment of the pleadings in an appeal under Cl. 15 of the Letters Patent. Their Lordships observed that the Court hearing the second appeal after granting amendment could not take over the function of the trial Court or the first appellate Court and undertake appreciation of evidence and record findings of facts and that was not the function envisaged by the Code of the Court hearing second appeal under S. 100, C.P.C and that was crystal clear from the provision contained in S. 103 which defines the power of the High Court to determine a question of fact while hearing second appeal. It has been further pointed out that power (under S. 103, C.P.C) is limited to evidence on record which again is sufficient to determine an issue of fact necessary for the disposal of the appeal and which has not been determined by the lower appellate Court or which has been wrongly determined by such Court. In view of the judgment of the Supreme Court in Balai Chandra's case (AIR 1978 SC 1062) (supra) in our view, the view taken by Chandra Reddy, J. (as he then was) in Venku Reddi's case (AIR 1956 Andh Pra 250) (supra) is no longer good law.

13. Thus, from the above discussion it is clear that the High Court while hearing second appeal cannot go into the question of fact. Therefore, the application for admitting additional evidence in a review petition in second appeal, whether such evidence was within the knowledge of the party seeking production of the same, or could not have been produced with due diligence at the time the decree was passed in second appeal cannot be entertained. O. 42, C.P.C which says that the provisions of O. 41 would apply to second appeal, has qualified the same by adding the expression “as far as may be”. Therefore, the contention that in view of the provisions of O. 41, R. 27, C.P.C, additional evidence has to be permitted in second appeal, cannot be accepted.

14. We accordingly answer the question referred to us.

Question answered.

Anisetti Bhagyavathi v. Andaluri Satyanarayana And Others

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Review-Petitioner's Arguments (as summarized from the opinion)

Respondent's Arguments (as summarized from the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Anisetti Bhagyavathi v. Andaluri Satyanarayana And Others

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