- Bookmark
- Share
- CaseIQ
Rang Lal v. Lilawati And Others
Factual and Procedural Background
This second appeal arises from a suit in which the plaintiff sought an injunction. The defendant challenged the plaintiff's title to sue. The lower appellate Court decreed the suit in favor of the plaintiff-respondent, affirming that the plaintiff had sufficient title. The defendant appealed to this Court and filed an application for production of further evidence, alleging newly discovered evidence that Anokhey Lal, from whom the plaintiff derived title, had previously disposed of his interest in the property. The application was made under Order 41, Rule 27 of the Code of Civil Procedure. The appellant also filed an application for review of the lower appellate Court's judgment before filing this appeal, but the lower appellate Court postponed consideration of that application due to the pending appeal.
Legal Issues Presented
- Whether this Court can allow the production of further evidence in a second appeal under Order 41, Rule 27.
- Whether this Court can consider further evidence relating to questions of fact in a second appeal.
- Whether the lower appellate Court was correct in postponing the application for review of its judgment after the appeal was filed.
- What remedy is available against the lower appellate Court’s order postponing consideration of the review application.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Inderjit Partab v. Amar Singh, A.I.R 1923 P.C 128 | Allowing production of further evidence under Order 41, Rule 27 in appeals, including fresh discovery. | Confirmed that the provision applies to second appeals as Order 42 extends Order 41 rules to second appeals, permitting production of further evidence. |
| Shamsshuddin Biswas v. Molannessa Bibi, A.I.R 1926 Cal. 941 | Further evidence affecting questions of fact cannot be considered in second appeals. | Applied to hold that this Court cannot consider further evidence tendered to impugn questions of fact in second appeals. |
| Wali Mohammad v. Mohammad Baksh, A.I.R 1924 Lahore 444 | Further evidence on questions of fact must be produced before a Court competent to decide facts. | Supported the principle that tendering such evidence in a second appeal is ineffective as the Court is confined to questions of law. |
Court's Reasoning and Analysis
The Court first acknowledged that the rules allowing production of further evidence under Order 41, Rule 27, apply to second appeals by virtue of Order 42, thus permitting the appellant to produce further evidence. However, the Court emphasized that second appeals are confined to questions of law and cannot impugn findings of fact. Since the additional evidence sought to challenge a factual finding—namely, the plaintiff’s title—it would be futile for the Court to accept evidence it cannot consider. The Court referenced precedents that established this principle.
Regarding the appellant’s application for review before the lower appellate Court, the Court found that the lower appellate Court erred in postponing the review application merely because an appeal had been filed. Order 47, Rule 1 requires that no appeal be preferred before a review application is made, which was true when the appellant filed the review. The subsequent filing of the appeal did not justify refusal to entertain the review. The Court held that the lower appellate Court should have proceeded to decide the review application on its merits, including consideration of whether the application complied with the procedural conditions such as due diligence in discovering fresh evidence.
Since no appeal lies against the lower appellate Court’s order postponing the review application, the Court exercised its revisional jurisdiction under Section 115 of the Code of Civil Procedure. It found that the lower appellate Court failed to exercise its jurisdiction and directed it to reconsider the review application promptly. Meanwhile, the appeal before this Court was postponed for three months pending the outcome of the review application.
On costs, the Court attributed blame to the appellant for prematurely filing the second appeal before the review was decided and ordered the appellant to pay the respondent’s counsel fees for the present proceedings.
Holding and Implications
The appeal is postponed for three months.
The Court directed the lower appellate Court to take up and dispose of the appellant’s application for review of its judgment on the merits without rejecting it solely because an appeal had been filed. The lower appellate Court must consider whether the review application complies with procedural requirements, including the requirement of due diligence in discovering fresh evidence.
This decision ensures that review applications are properly adjudicated before appeals proceed, preserving procedural fairness. It clarifies that second appeals cannot be used to admit fresh evidence on questions of fact, reinforcing the appellate hierarchy and the limited scope of second appeals. No new precedent was established beyond the application of existing procedural and substantive rules.
1. This second appeal arises out of a suit in which the plaintiff asked for an injunction. The defence was that the plaintiff had no title. The suit has been decreed by the lower appellate Court which found in favour of the plaintiff-respondent in this Court, having sufficient title to sue. The defendant appeals. Before deciding the appeal it is necessary to consider the appellant's application for the production in this Court of further evidence. He has alleged by an afidavit that he became aware, subsequent to the decision of the lower appellate Court, of the existence of evidence showing that Anokhey Lal from whom the plaintiff derived her title had entirely disposed previously of his interest in the property. The application for production of further evidence purported to be under O. 41, R. 27.
2. There is no doubt in my mind that, if this were a first appeal, this Court could allow the further evidence to be produced under O. 41, R. 27(b). It has been laid down by their Lordships of the Privy Council in Inderjit Partab v. Amar Singh . A.I.R 1923 P.C 128 at p. 684 (of 2 Pat.) that this provision will cover the case of the production of evidence, even though that evidence is not required by the appellate Court to enable it to pronounce judgment, but is only tendered on the ground of fresh discovery. But it is urged by counsel for the respondent that O. 41, R. 27 only applies to first appeals, and that the Privy Council decision also can only be construed to have reference to a case where further evidence is tendered in a first appeal. But O. 42 declares that the rules of O. 41 shall apply so far as may be to second appeals. There is, therefore, in my opinion, no reason for holding that the additional evidence could not be accepted by this Court. It is, however, another matter whether, having accepted that evidence, this Court could consider it. In second appeals decisions of fact cannot be impugned.
3. It is clear that this evidence is tendered in order to impugn a question of fact. I hold that it would be useless for this Court to accept the evidence if it cannot use that evidence for the purpose for which it is tendered, and I further hold that it cannot. This was the view taken in Shamsshuddin Biswas v. Molannessa Bibi, A.I.R 1926 Cal. 941 at 943. The same view was adopted in Wali Mohammad v. Mohammad Baksh, A.I.R 1924 Lahore 444 at 445. Where a party wishes to produce further evidence affecting a matter of fact, it must get that evidence produced before a Court which can decide a question of fact. It is useless for him to tender that evidence before a Court which is confined to questions of law. But it appears that the appellant did tender this further evidence to the lower appellate Court and asked for a review of judgment. The application of the appellant to this effect was dated 16th April 1927. This appeal was filed on 17th May 1927, before the review case came up for hearing before the lower appellate Court. The lower appellate Court passed a somewhat curious order on the application. It neither accepted the application for review nor rejected it, but stated that, as an appeal had been filed before its consideration of the application, the application would be held pending. It is not clear what advantage there could be in postponing decision instead of rejecting the application.
4. I am of the opinion that the order of the lower appellate Court on the application for review was not a proper order. O. 47, R. 1, governs the procedure to be adopted on an application for review of judgment. A condition precedent prescribed by that rule for making such an application is that there has been no appeal preferred. At the date when the application was made this condition was satisfied. There is nothing in O. 47, R. 1, or in other provisions of the Code of Civil Procedure, so far as I am aware, which would justify the lower appellate Court in refusing to entertain the application for review merely on the ground that subsequent to the making of the application an appeal had been filed. The policy of the Code appears to me to be that a person cannot of far filing a second appeal allowed to apply to obtain a review of judgment in the lower Court, which should have the effect of altering the judgment and decree from which he had appealed. The Code has not contemplated a case where having applied for review the same person appeals. It might be deemed a good reason in such a case for rejecting the appeal, but, as an application for review has been filed no sufficient ground appears to me to exist by reason of the subsequent filing of as appeal for rejecting the application. Consequently I hold that the lower appellate Court should have proceeded to deal with the application for review.
5. The next question is what remedy has the applicant to correct the order of the lower appellate Court postponing consideration of the application for review. No appeal from such an order lies as it cannot possibly be considered a final order. On the other hand, such an order is not included in the list of orders contained in O. 43, R. 1 from which an appeal is allowed. The only method, then by which this Court can interfere is by revision under S. 115 of the Code. It appears to me that in refusing to proceed with the application for review the lower appellate Court failed to exercise a jurisdiction vested in it, and therefore I can interfere. As regards the appeal, it is obvious that decision on it should be held over pending the decision by the lower appellate Court on the application for review. Accordingly it is ordered that this appeal be postponed for three months, and it is ordered that the lower appellate Court be directed to take up again the appellant's application for review, dated 16th April 1927, and dispose of the same on the merits. It will not be open to that Court to hold that the application will not lie on the ground of the filing of an appeal in this Court, but it will be open to that Court to consider whether the application is in order having regard to the other provisions and conditions imposed by O. 47, R. 1, including the provision that if a review is asked for on the ground of discovery of fresh evidence, it must be shown that the applicant could not with due diligence have been aware of the existence of that evidence.
6. As regards costs in this case it appears to me that the appellant is to blame. He should not have filed his second appeal but should have deferred doing so until his application for a review had been decided. This being so I consider that the appellant should bear the cost of counsel on the other side for today's proceedings. This cost will be reckoned at Rs. 32, the amount of fee certified as paid to the respondent's counsel. Any other or subsequent costs in connexion with this appeal will abide the result of the appeal.
P.R/R.K
7. Appeal postponed.
Alert