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  • M.H.Chhatrapati
  • Ketty A.Mehta
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  • M.H.Chhatrapati
  • Ketty A.Mehta
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Smart Summary

Structured Summary of the Provided Legal Opinion

Factual and Procedural Background

This matter arises in a Second Appeal in which Mr. Chhatrapati, appearing on behalf of the plaintiffs, filed an affidavit with annexed documents and prayed for the taking of additional evidence on record. The affidavit purportedly showed that portions of the defendants' evidence were false. The central procedural question before the Court was whether it is open to a High Court in a Second Appeal to take additional evidence. After reviewing numerous authorities and the relevant provisions of the Code of Civil Procedure, the Court addressed competing lines of authority and concluded by dismissing the appeal.

Legal Issues Presented

  1. Whether a High Court in a Second Appeal may admit additional evidence (i.e., whether additional evidence can be taken on record in a Second Appeal).
  2. Whether Order 41, Rule 27 of the Civil Procedure Code applies to Second Appeals or is excluded by the limited scope of Section 103 and the nature of Second Appeals.
  3. Whether the concept of "substantial cause" under Order 41, Rule 27 permits admission of additional evidence in a Second Appeal to fill lacunae caused by a party's negligence or indifference.
  4. Whether subsequent events or evidence discovered after the lower courts' proceedings can be considered in a Second Appeal.

Arguments of the Parties

Plaintiffs' Arguments (as presented by Mr. Chhatrapati)

  • Mr. Chhatrapati filed an affidavit with annexed documents and prayed for the admission of additional evidence in the Second Appeal.
  • The additional evidence sought to be produced allegedly showed that certain statements in the defendants' evidence were false.
  • He relied on a series of authorities (including decisions that permit reception of additional evidence under Order 41, Rule 27) to support the proposition that additional evidence may be admitted in appropriate circumstances.

The opinion does not contain a detailed account of the defendants' legal arguments in response to the plaintiffs' application.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
P. V. Subba Raja v. S. S. Narayana Raja, AIR 1954 Mad 1074 Held that circumstances under which a second appellate Court may determine an issue of fact are limited by Section 103; ordinarily not competent for High Court in a Second Appeal to admit additional evidence; Order 41 provisions do not automatically apply to Second Appeals. Cited to support the proposition that a Second Appeal is limited by Section 103 and that additional evidence should ordinarily not be admitted in a Second Appeal.
Venku Reddi v. Pichi Reddi, AIR 1956 Andhra 250 Held that neither Section 103 nor Order 41, Rule 27 excludes applicability of Rule 27 to Second Appeals; Rule 27's terms are general and in an appropriate case a High Court in a Second Appeal may admit additional evidence. Cited as representing the contrary view (a "second school of thought") that additional evidence may be admitted in a Second Appeal under Rule 27 in appropriate cases.
Ramchandra Pandurang Sathe v. Krishnaji Vithal Joshi, (1904) ILR 28 Bom 4 Division Bench held that if evidence is discovered on reaching the High Court under Second Appeal which ought to have been placed before lower courts, the proper practice is to allow withdrawal of the second appeal so a review petition can be presented to the lower appellate court. Cited (with approval of an earlier decision) to support the view that additional evidence should not be admitted in a Second Appeal and that procedural remedies at lower appellate levels should be pursued.
Nanabhai Vallablidas v. Nathabhai Haribliai, (1872) 9 Bom HCR 89 Earlier High Court decision dealing with reception of evidence and practice when fresh evidence is discovered on appeal. Referred to with approval in Ramchandra Pandurang Sathe; used to support the procedural practice against admitting fresh evidence in Second Appeals.
Sumanlal Bhagwandas Kapadia v. Naginlal Bhagwandas Kapadia, 8 Guj LR 386 = (AIR 1967 Guj 87) Held there is no justification for High Court to allow additional evidence in a Second Appeal to fill lacunae; High Court in a Second Appeal is to examine whether impugned decree is in accordance with law and cannot take additional evidence amounting to a retrial; if case falls under Order 41, Rule 27, different considerations may arise. Cited by this Court as authority supporting the restriction on admitting additional evidence in Second Appeals; distinguished situations where Rule 27 might apply.
Ambaben Wd/o Anandji Parashottamdas Ganatra v. Thakkar Gordhandas Dharamshi, ILR (1971) 12 Guj 1165 = (AIR 1972 Guj 70) Held High Court in a Second Appeal cannot consider subsequent events or allow additional evidence; Section 151 cannot be invoked to permit such evidence. Cited to reinforce the proposition that subsequent events and additional evidence are not admissible in Second Appeals and that Section 151 cannot be used to circumvent this limitation.
Jn Laxminarayan Deepchand Maheshwari v. Bhiku Punjaji Lewa, (1974) 76 Bom LR 83 Bombay High Court held it is open in a Second Appeal to admit additional evidence under Order 41, Rule 27 if the conditions of that rule are satisfied. Cited as authority reflecting the view that Rule 27 can permit admission of additional evidence in a Second Appeal under appropriate conditions (representative of the permissive line of cases).
Indrajit v. Amar Singh, 25 Bom LR 1259 = (AIR 1923 PC 128) Privy Council held appellate Court's jurisdiction under Order 41, Rule 27 to admit additional evidence is not limited to cases where the Court itself discovers lacunae; a suitor may apply for admission for any substantial cause and the Court has discretion. The Court noted this principle but held it not applicable to Second Appeals in the present context because the Privy Council's rule related to a different appellate setting (and the case facts involved refusal to admit in a First Appeal), thereby distinguishing its applicability to Second Appeals.
Arjan Singh v. Kartar Singh, AIR 1951 SC 193 Held that a finding of fact, however erroneous, cannot be challenged in a Second Appeal; commentary regarding inadmissibility of additional evidence when first appellate court admits such evidence before examining the original record. Cited for the proposition that findings of fact are generally final in Second Appeals; Court observed the principle had limited application to the present facts and reiterated the distinction between First and Second Appeals.
K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526 Supreme Court held under Order 41, Rule 27 an appellate Court may allow additional evidence if it requires such evidence to pronounce its judgment, or for any other substantial cause; the requirement is to secure interests of justice. Cited as authoritative on the scope of Order 41, Rule 27 in First Appeals; the Court observed that the principle arises in First Appeal contexts and cannot govern the question of admission in Second Appeals.
Municipal Corporation of Greater Bombay v. Lala Pancharn, AIR 1965 SC 1008 Held that under Order 41, Rule 27 the appellate Court can allow documents and witnesses but limitation exists: evidence should be admitted only when necessary to enable pronouncement of judgment and to remove a lacuna in the record. Quoted to illustrate the limited scope for admitting additional evidence under Rule 27 and to stress the distinction between necessity for pronouncement of judgment and allowing fresh evidence merely to obtain a desired outcome; used to support the view that First and Second Appeals differ.
Kessowji Issur v. Great Indian Peninsula Railway Company, (1907) 34 Ind App 115 Privy Council held High Court had no jurisdiction under section 568 (earlier CPC) to admit fresh evidence; power limited to supplying inherent lacunae apparent on the record rather than discovery of new matter outside the Court. Cited to show historical limits on appellate courts' power to admit fresh evidence and to distinguish older statutory regimes; noted the decision arose in a particular appellate setting (appeal from original decree to a High Court single judge).

Court's Reasoning and Analysis

The Court undertook a comparative review of authorities and identified two schools of thought: (1) authorities holding that a Second Appeal is limited by Section 103 of the Code of Civil Procedure and, consequently, the High Court in a Second Appeal ordinarily cannot admit additional evidence; and (2) authorities holding that Order 41, Rule 27 is of general application and, in an appropriate case, permits admission of additional evidence in a Second Appeal.

The Court emphasized the legal distinction between First Appeals and Second Appeals. It explained that considerations governing reception of additional evidence in a First Appeal are different because a First Appellate Court decides on facts and law, and may therefore review and re-appreciate evidence. By contrast, in a Second Appeal the jurisdiction is limited to examining whether the impugned decree conforms with law; findings of fact by the lower appellate court are generally final and binding on the High Court in the Second Appeal.

After reviewing the cited authorities, the Court concluded that the weight of settled authority supports two propositions: (i) the principles applicable to reception of additional evidence in First Appeals differ from those applicable to Second Appeals; and (ii) additional evidence subsequently discovered by a party cannot be admitted in a Second Appeal. The Court relied on earlier decisions (including those of this Court and of High Courts) which have held that admission of additional evidence in a Second Appeal is not justified where it would amount to a retrial or is sought to fill lacunae caused by the party's negligence or indifference.

The Court specifically rejected the plaintiffs' contention that the expression "substantial cause" under Order 41, Rule 27 should be interpreted to permit a further opportunity to fill lacunae caused by the plaintiffs' own indifference or negligence. The Court held that "substantial cause" does not extend so far and that the plaintiffs' first contention lacked substance.

Holding and Implications

HOLDING: The Court held that the additional evidence which the plaintiffs sought to produce in this Second Appeal cannot be taken on record. The first contention of the plaintiffs was rejected and, ultimately, the appeal was dismissed.

Implications:

  • The direct effect of the decision is to deny the plaintiffs' application to admit additional evidence in the Second Appeal and to dismiss the appeal.
  • The Court reiterated the established limitation that a Second Appeal is primarily an inquiry into whether the impugned decree conforms to law and is not ordinarily an occasion for receiving fresh evidence or conducting a retrial.
  • The opinion emphasizes that the term "substantial cause" under Order 41, Rule 27 does not permit admission of evidence to cure lacunae caused by a party's negligence; the decision aligns with prior authorities that limit reception of fresh evidence in Second Appeals. The opinion does not purport to create a new precedent beyond applying and affirming the existing line of authority reviewed in the judgment.

Disposition: Appeal dismissed (per the text: "14. Appeal dismissed.").

Show full summary ...

    Chudasma Jasublia Manubha And Anr. v. Chudasma Raisinh Bapubha And Ors.

    1-10 x x x x x x x x

    11. Mr. Chhatrapati has filed on behalf of the plaintiffs an affidavit to which are annexed copies of certain documents. He prays for taking additional evidence on record. According to him that evidence which shows that what the defendants have stated in their evidence, is false. The question which has arisen is whether it is open to this Court in a Second Appeal to take additional evidence. On the question whether additional evidence can be taken or not in a Second Appeal there are two schools of thought. In P. V. Subba Raja v. S. S. Narayana Raja AIR 1954 Mad 1074 Mr. justice Krishnaswami Nayiidu after having reviewed a number of decisions has held that the circumstances under which a second appellate Court may determine an issue of fact are limited to the conditions arising under Section 103 which makes the position clear that so far as evidence is concerned, on which an issue of fact may be determined, the evidence on record must be sufficient to enable the High Court to decide the question of fact. According to him it necessarily implies that it is ordinarily not competent to the High Court in a Second Appeal to consider any other evidence excepting the evidence on record Therefore, the second appellate Court cannot admit evidence and give its own decision on a question of fact. The provisions of section 103 are sufficiently clear to exclude the operation of Order 41, Rule 27 and their applicability to appeals filed under Order 42, Civil Procedure Code. Every provision in Order 41 does not automatically apply to a proceeding in second appeal by virtue of Order 42, Rule I 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 fact. According to him, therefore, the proper view to be taken is that it is not competent to admit additional evidence in a second appeal. The second school of thought is represented by the decision of Andhra Pradesh High Court in Venku Reddi V. Pichi Reddi, AIR 1956 Andhra 250. Mr. justice Chandra Reddy has taken the view by therein that there is nothing either in Section 103 or in Order 41, Rule 27, Civil Procedure Code, ,6ich excludes the applicability of the latter Provision to second appeals. The terms of Rule 27 are general in application and in an appropriate case it is open to the High Court in a second appeal to admit additional evidence. In Ramchandra Pandurang Sathe'v. Krishnaji Vithal Joshi, (1904) ILR 28 Bom 4 it has been held by a Division Bench of the High Court of Bombay that if on coming to the High Court under second appeal it is discovered that there is evidence which ought to have been Placed before the lower Courts, the proper practice to pursue is to allow the second appeal to be withdrawn in order that a review petition may be presented to the lower Appellate Court. This decision refers with approval to the earlier decision of the High Court of Bombay in Nanabhai Vallablidas v. Nathabhai Haribliai (1872) 9 Bom HCR 89. In Sumanlal Bhagwandas Kapadia v. Naginlal Bhagwandas Kapadia, 8 Guj LR 386 = (AIR 1967 Guj 87) it has been held by this Court that there is no justification for the High Court to allow additional evidence in a second appeal for the purpose of filling in the lacuna in the evidence since the High Court in a Second Appeal is required only to examine, whether the impugned decree is in accordance with law or not. No additional evidence can be taken which would involve retrial and re appreciation of evidence. If the case falls under order 41, Rule 27 of the Civil Procedure Code then different considerations may arise. In Ambaben Wd/o, Anandji Parashottamdas Ganatra v. Thakkar Gordhandas Dharamshi, ILR (1971) 12 Guj 1165 = (AIR 1972 Guj 70) it has been held by this Court that it is not open to the High Court in a Second Appeal to consider the subsequent events and to allow additional evidence. It has been further held that since there is a specific provision made by the legislature in that behalf the provisions of Section 151 of the Code of Civil Procedure cannot be invoked. A similar question arose before Divan, J. (as he then was) in Second ,kppeal No. 756 of 1960 decided by him on 17th, 23rd and 24th February, 1965 (Guj). After having reviewed a number of decisions on the question, he has taken the view that additional evidence cannot be taken in a Second Appeal and that the decree of the lower appellate court can be attacked in a Second Appeal only on any of the grounds set out in sech'on 100 of the Civil Procedure Code. Mr. Chhatrapati has invited my attention to certain other decisions also. Jn Laxminarayan Deepchand Maheshwari v. Bhiku Punjaji Lewa (1974) 76 Bom LR 83 the High Court at Bombay has taken the view that it is open to the High Court in a second appeal to admit additional evidence under Order 41, Rule 27 of the Civil Procedure Code, 1908 if the conditions laid down in that rule are satisfied. He has invited my attention to the decision of Privy Council in Indrajit v. Amar Singh 25 Born LR 1259 = (AIR 1923 PC 128). It has been held in that case that under Order 41, Rule 27 of the Civil Procedure Code, the jurisdiction of an appellate Court to admit additional evidence is not limited to cases where the Court itself discovers some lacuna or defect and requires evidence to enable it to pronounce its judgment. A suitor is entitled, for any substantial cause, to apply to the Court for the admission of further evidence and the Court has a discretion in the matter. The principle laid down by Privy Council in that decision is not applicable to Second Appeals because the facts of the case clearly show that the High Court at Bombay had refused to take additional evidence in a First Appeal. In a First Appeal the High Court decides on facts and is, therefore, entitled to review the evidence and to record its conclusion whether the finding recorded by the trial court is a finding which can be supported on evidence. Therefore, the question whether additional evidence can be admitted in a second appeal or not does not stand on par with the question whether additional evidence can be admitted in a First Appeal. In both cases different considerations prevail. The next decision to which my attention has been invited is in Arjan Singh v. Kartar Singh, AIR 1951 SC 193. In that decision it has been held that a finding of fact, however erroneous, cannot be challenged in a second appeal. The principle laid down in that decision has no application to the facts of the case because the Supreme Court has observed that where the first appellate court admits additional evidence before examination of the evidence on record and consequently before reaching a decision that the evidence as it stands discloses a lacuna which the court requires to be filled in for pronouncing its judgment, the appellate court is not justified in admitting the additional evidence. That is not the case here. It has also been observed that if there is any lacuna or defect which becomes apparent to the Court of appeal then whether the additional evidence should be admitted or not is to be decided in the light of the fact whether the appellate court is able to pronounce the judgment on the materials before it without taking into consideration the additional evidence sought to be produced. That was also the case where additional evidence was sought to be produced in a First Appeal which is to be decided not only on law but on facts also. In K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526 the Supreme Court has observed that under Order 41 Rule 27 the appellate Court has power to allow additional evidence not only if it requires such evidence to enable it to pronounce its judgment but also for any other substantial cause. The Supreme Court has further observed that the requirement by the Court of additional evidence means that it requires additional evidence to pronounce its judgment in the interests of justice in order that nothing may remain obscure and that it may pronounce its judgment in a more satisfactory manner. That was also a case where an attempt was made to produce additional evidence in a First Appeal before the High Court. It cannot govern the case. where additional evidence is sought to be produced in a second appeal. The last decision to which Mr. Chhatrapati has invited my attention is in Municipal Corporation of Greater Bombay v. Lala Pancharn AIR 1965 SC 1008. It has been held in that decision that under Order 41, Rule 27 the appellate Court has power to allow a document to be produced and a witness to be examined. However, it has been further observed that the requirement of the appellate Court must be limited to those cases where it finds it necessary to obtain such evidence for enabling it to pronounce its judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce its judgment. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing its judgment in a particular way. in other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. In that case the plaintiffs had instituted a suit in the City Civil Court at Bombay and First Appeal from the decision of that Court was taken to the High Court of Bombay. The question whether additional evidence should be allowed to be produced in a First appeal is different from the question whether it should be allowed to be produced in a second appeal. In Kessowji Issur v. Great Indian Peninsula Railway Company (1907) 34 Ind App 115, the Privy Council has laid down that the High Court had no jurisdiction under Section 568 to admit fresh evidence. Its power there under is limited to supplying any inherent lacuna or defect which appears on examining the evidence as it stands and does not relate to the discovery of new matter outside the Court. That decision is based upon section 568 of the earlier Civil Procedure Code. However, it is necessary to note that the question of admitting fresh evidence arose in that case before the High Court of Bombay in an appeal from a original decree passed by the learned Single judge of that court. A review of several decisions to which Mr. Chhatrapati has invited my attention make two propositions very clear. The first proposition is that the considerations which prevail in regard to the reception of additional evidence in a First Appeal are different from those which prevail in regard to its reception in a second appeal. In a Second Appeal, the Court is required to examine whether the impugned decree is in conformity with law. The findings of fact recorded by the lower appelate court are final and binding on the Court. The second proposition which emerges from the aforesaid decision is that additional evidence subsequently discovered by a party cannot be admitted in a Second Appeal. That s the view which this Court has taken in three decisions to which I have referred. That is the view which was taken by the High Court of Bombay in Ramchandra Pandurang Sathe v. Krishnaji Vithal Joshi (1904) ILR 28 Bom 4 (Supra). In light of this settled view on the question it is clear that the additional evidence which Mr.Chhatrapati seeks to produce in this second appeal can not be taken. The expression "substantial cause" under Order 41 Rule 27 does not in my opinion mean that a further opportunity should be given to the plaintiffs to fill in the lacuna caused by their indifference and negligence. The first contention which Mr. Chhatrapati has raised is, therefore, without any substance and is rejected.

    12-13. X x x x x X.

    14. Appeal dismissed.

    Order 41, Rule 27
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    Chudasma Jasublia Manubha And Anr. v. Chudasma Raisinh Bapubha And Ors.
    (Dec 4, 1975)