The Garden Reach Spi... v. The Secretary Of Sta...

1. This is an application by the appellants for. the admission of certain additional evidence in an appeal we are about to hear.

2. The appeal itself is with reference to the amount to be paid by the Government as compensation for the property of the appellants which has been compulsorily acquired under the provisions of the Land Acquisition Act. The fresh evidence that the appellants wish to adduce consists of certain documents leading up to and resulting in a compromise of another case with reference to the acquisition of the premises of the British India Steam Navigation Co., which adjoin the premises of the appellants.

3. The compromise with the British India Steam Navigation Co. had not been arrived at when the lower Court gave judgment, nor when the appeal was filed in this Court. The present application is opposed by the Secretary of State for India in Council, the respondent to the present appeal.

4. Now the powers of sin Appellate Court in India to admit further evidence are governed by the provisions of Order XLI, Rule 27, which so far as material is in the following terms: (1) The parties to an appeal shall not he entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined." The wording of the rule shows clearly that the power of an Appellate Court to admit further evidence is a very restricted one.

5. In the first place, the rule prohibits the parties to the appeal from producing further evidence.

6. Next, the power oil the Court to admit further evidence is only in case the Appellate Court "requires" the additional evidence "to enable it to pronounce judgment or for any other substantial cause."

7. As has been pointed out, the word "requires" plainly means "needs or finds needful." When, therefore, can the Appellate Court require" the additional evidence "to enable it to pronounce judgment or for any other substantial causer" Manifestly not until the Appellate Court has examined the evidence on the record and comes to the conclusion that the evidence as it stands is inherently defective. Until the Court has, therefore examined the record, it is not in a position to say, whether the evidence is inherently defective and that it will require the further evidence to enable it to pronounce judgment or for any other substantial cause. A preliminary application such as the present is not warranted by the terms of Order XLI, Rule 27.

8. An application to admit fresh evidence discovered out of Court by the parties comes under Order XLVII, Rule 1, not under Order XLI, Rule 27.

9. It is said that the evidence was not in existence at the date of the trial and the case of Kotaghiri v. Vellanki 4 C.W.N. 725 : 24 M. 1 (P.C.) : 27 I.A. 197 was cited to show that such evidence is not admissible by way of review. The point does not arise in the present case and it is not necessary for us to decide whether such view is correct or not.

10. Order XLI, Rule 27, does not, I think, authorise an Appellate Court to adroit fresh evidence, documentary or oral and whether or not it was in existence at the time of the judgment of the lower Court or at the time the appeal was preferred, unless the Appellate Court, after examining the evidence on the record, comes to the conclusion that it requires the additional evidence in order to enable it to pronounce judgment, namely, that there is a lacuna or defect in the evidence in the record.

11. This appears to me to be the effect of the decision of the Privy Council in the case of Kessowji Issur v. Great Indian Peninsular Railway 11 C.W.N. 721 : 31 B. 381 : 6 C.L.J. 5 : 4 A.L.J. 461 : 2 M.L.J. 317 (P.C.) : 34 I.A. 115. I can find nothing in the judgment of their Lordships to suggest that now evidence, discovered out of Court by the parties but which only came into existence after the filing of the appeal, can be admitted on a preliminary application by the parties to the Appellate Court. Such a suggestion is negatived by the express words in Order XLI, Rule 27, that the parties to an appeal shall hot be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court."

12. I think, therefore, that we have no jurisdiction to assent to the present application. But even if we had such jurisdiction, I should, on the materials before us, refuse this application. The evidence the appellant Company wish to put forward is to the following effect.

13. The British India Steam Navigation Company were the owners of the premises adjoining those of the appellant Company. Both the British India Company and appellant Company are represented in Calcutta by Messrs. Mackinnon Mackenzie and Company as also in London, although apparently the two Companies have different Boards of Directors in London.

14. On the premises adjoining those of the appellant Company, the British India Company had a considerable coal business chiefly for the purpose of coaling their extensive fleet. This property of the British India Company is known as Brace-bridge Hall.

15. The same declaration under the provisions of the Land Acquisition Act was made in respect of the property of the appellant Company, Bracebridge Hall and various other properties..

16. The British India Company, after the declaration, preferred a claim for a very large amount amounting in the first instance to over one crore and 22 lakhs of rupees.

17. An award of 14 lakhs odd of rupees was made by the Land Acquisition Collector. The British India Company then required the matter to be taken before the Special Land Acquisition Judge. Negotiations were then opened between Sir Frederic Dumayne on behalf of the Calcutta Port Commissioners on the one hand and in the first instance with Mr. Alexander McLaurin Monteath and subsequently Lord Inchcape on behalf of the British India Company, on the other hand. After long and protracted negotiations the case of the British India Company was subsequently settled by a cash payment of 28 lakhs of rupees to the British India Company, and the grant of certain facilities by the Port Commissioners with reference to the coaling of the fleet of the British India Co. It is now alleged that the facilities granted to the British India Co. are more valuable than those enjoyed by them at Bracebridge Hall, and, therefore, the whole of the 28 lakhs was awarded in respect of the other items of their claim. On this footing, it is said that the Port Commissioners have paid the British India Co. in respect of the site of Bracebridge Hall an amount three or four times larger than the amount paid to the appellant Company, when in fact the land of the appellant Company and Bracebridge Hall must be of substantially the same value. The appellant Company, therefore, desire to give in evidence certain documents relating to the compromise of the claims of the British India Co. Two affidavits have been filed on the present application, one by Mr. Alexander McLaurin Monteath in support of the application and the other by Sir Frederic Dumayne in opposition thereto. Sir Frederic Dumayne is the Vice-Chairman and Chief Executive Officer of the Port Commissioners. There is a conflict between the statements contained in the affidavit of Mr. Monteath and those in the affidavit of Sir Frederic Dumayne. Now it appears from the evidence that the negotiations, which led to the settlement with the British India Co., were opened early in January 1911. The negotiations no doubt were stated by Sir Frederic Dumayne to be "without prejudice to either side" and "confidential." Mr. Sinha on behalf of the Government has argued that this would render all correspondence which passed between the parties thereto incapable in any event of being used in evidence even when a settlement was arrived at. I think Mr. Sinha placed his case too high. The affidavits do establish, however, that in addition to the correspondence interviews took place in the first instance between Mr. Monteath and Sir Frederic Dumayne with a view to a settlement of the case of the British India Co.

18. The negotiations in India closed in May 1911.

20. In June 1911 Sir Frederic Dumayne proceeded to England. It appears from his affidavit that the Port Commissioners had directed him to see Lord Inchcape with reference to compromising the British India Company's case. He was also authorised to go as far as to make an offer of 25 lakhs of rupees for that purpose. Lord Inchcape and Sir Frederic Dumayne arrived" finally at a settlement, viz., that the Port Commissioners should pay to the British India Co. 28 lakhs of rupees and give to the British India Co. certain facilities. Sir Frederic Dumayne has sworn in his affidavit that in the settlement he never contemplated paying 28 lakhs of rupees for the land, structures and machinery of the British India Co., but that he agreed to this sum as a settlement of the whole case.

21. Lord Inchcape has not made an affidavit as to what took place between himself and Sir Frederic Dumayne. The Port Commissioners sanctioned with reluctance the settlement arrived at between Lord Inchcape and Sir Frederic Dumayne and recommended it to the Government for sanction and approval. The settlement was subsequently approved of by the Government. This, however, was after the present ease had been decided by the Special Judge and the present appeal filed.

22. Much stress has been laid by the appellants oil the proceedings of the Special Land Acquisition Committee of the Port Commissioners of the 20th October 1911. No doubt the record of the proceedings is not very happily worded, but I cannot imagine that a public body like the Port Commissioners intended to pay the British India Co. for their land u sum so vastly in excess of what they were paying to other parties and which would in the end result in their having to pay excessive sums for other lands acquired by them. For if this 28 lakhs was in fact paid only for the land, structures and machinery, this fact would be used in subsequent cases against the Port Commissioners as to the value of the lands acquired by them.

23. Sir Frederic Dumayne has sworn that he was fully cognisant of the prices paid by the Port Commissioners on other acquisitions and that what he wanted to settle was the whole case against the Commissioners.

24. The total claim preferred by the Rritish India Co. amounted to Rs. 1,22,40, 780-11-10. A large number of the items in the claim would appear to be altogether untenable. One of the items in the claim was a sum of Rs. 37,01,940 "for loss of time." This item was claimed for the difference between the time it would take to bring the vessels of the British India Co. alongside at Bracebridge Hall and that required to take them into the Docks of the Commissioners.

25. It is difficult to imagine on what principle such a claim could be supported. The Port Commissioners were, however, in this difficulty that the Collector had allowed the sum of Rs. 1,27,140-10-0 in respect of this item and so had admitted the claim in principle. The Court, under the provisions of the Land Acquisition Act, has no jurisdiction to reduce the amount awarded by the Collector and it may perhaps be doubted whether the Court has jurisdiction to re-allot over the different items of claim the aggregate amount allowed by the Cellector. All the probabilities, therefore, suggested that the story told by Sir Frederic Dumayne in his affidavit that what he settled with Lord Inchcape was the where case between the British India Co. and the Port Commissioners and that the sum of 28 lakhs of rupees was not paid to British India Co. in respect of the land, machinery and structures only, is correct. The only person who could have contradicted Sir Frederic Dumayne as to the terms arrived at in London between Lord Inchcape and himself would be Lord Inchcape. If, therefore, we were to decide to permit the appellant Company to adduce further evidence, it would have to be the evidence of Lord Inchcape as to what were the terms of settlement between himself and Sir Frederic Dumayne. In that event such evidence would have to be tested in the ordinary manner by cross-examination.

26. The letters that passed between Lord Inchcape and Sir Frederic Dumayne, dated the 26th of January and the 13th of February 1912, suggest that Lord Inchcape did not consider that the sum of Rs. 28 lakhs had been paid to the British India Co. in respect of Bracebridge Hall and the structures and machinery thereon.

27. The statements in Sir Frederic Dumayne's affidavit appear to me to agree with all the probabilities of the case and are un contradicted as to what was intended to be settled between him and Lord Inchcape. Even, therefore, if we have jurisdiction to admit this further evidence on the materials before us, I should refuse the appellant Company leave to do so.

28. The present application is, therefore, dismissed with costs, which we assess at 10 gold mohurs.

Richardson, J.

29. I entirely agree with Mr. Justice Fletcher, whose judgment I have had the advantage of reading, that the application before us is not one which we have jurisdiction to entertain under Order XLI, Rule 27. And I will only add this that even if we had a power, co-extensive with the power of the Trial Court under Order XLVII, to admit fresh evidence by way of review, I am not of opinion that the evidence tendered is evidence which ought to be admitted in the exercise of any such power. It is not evidence the hearing of which on the issue which has to be determined is practically beyond the sphere of controversy or in any sense conclusive. On the contrary it is only necessary to read the affidavit on the one side and the counter-affidavit on the other to show that matter is raised of a controversial and argumentative character. The question at issue is the market value of certain land at certain date. The argument which it is sought to put in (together with letters and other documents leading up to it) was arrived at in another case between parties, one of whom is not a party to the present case, and it was arrived at after the trial of the present case was concluded. By itself the agreement is of no use to the appellant Company, It only shows that a lump sum was paid to the British India Co. in respect of the. compulsory acquisition of their land and that in the same respect certain facilities were also promised to them by the Port Commissioners in connection with their coal tract. The land, it is true, adjoins the land of the appellant Company. But the compensation which the British India Co. had claimed from the Collector was arranged under different heads, many of which had nothing to do with the value of the land. Two or three items were withdrawn while the case was before the Collector, but the total claim which was subsequently carried before the Special Land Acquisition Judge was still very large. That claim was satisfied by the lump sum and the coaling facilities. Then comes the point how much of the money payment is to be allocated to the land. That depends on the further question, what was the value assigned to the facilities? Both these questions are in serious dispute, each side endeavoring to fasten upon the other its own interpretation of the agreement. As might have been expected, when such questions are debated between practical businessmen, there is a good deal to be said--at any rate a good deal was said on both sides. The difficulty of arriving at a decision as to what was paid for the land is not diminished by the reflection that it is not the actual value of the land and the actual value of the facilities that has to be considered, but what was in the minds of the parties to the agreement. What the appellant Company is really trying to do is to fix upon the Port Commissioners an admission as to the value of the land acquired from the British India Co., and I merely add that for that purpose the value which the Port Commissioners attributed to the land (as to which Sir Frederic Dumayne's affidavit is entitled to the greatest weight) is more important than the value which the British India Co. may have attributed to the land. But to my mind the doubts and difficulties which surround the evidence tendered are not only no recommendation, but area complete bar, to its reception at this stage, even, as I have said, if we had a power to receive fresh evidence such as that conferred on the Trial Court by Order XLVII.