Mohesh Chandra Shaw v. Bipin Behari Khan, Calcutta High Court, Judgment, Law, casemine.com

Citation Codes

Equivalent Citations

citation codes

Case Number

Appeal No. 2628 of 1916

Judges

Newbould
Panton, JJ.

Acts

provisions of O. 41, Section 27 of the CPC.
section of the Code of Civil Procedure

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Smart Summary

Factual and Procedural Background

This opinion arises from an appeal challenging the admission of certain additional evidence by the lower appellate Court. After the appeal was partly heard, the learned District Judge allowed the appellant to file certain documents and ordered a relay of boundaries by a Commissioner to verify previous maps. The appellant objected to the admission of this additional evidence, leading to the present appeal.

Legal Issues Presented

Whether the lower appellate Court had jurisdiction to admit additional evidence without recording reasons as required under Order 41, Rule 27 of the Code of Civil Procedure (CPC).
Whether the failure to record reasons for admitting additional evidence vitiates the appellate Court’s decision and warrants remand for rehearing.
Whether the additional evidence admitted affected the outcome of the appeal.

Arguments of the Parties

Appellant's Arguments

The additional evidence was wrongly admitted by the lower appellate Court.
The Court failed to record reasons for admitting the evidence as mandated by O. 41, R. 27 CPC.
The admission of this evidence affected the decision of the appellate Court.

Respondent's Arguments

Both parties wanted the additional evidence to be taken.
The order allowing additional evidence was made at the appellant’s request to check previous maps.
Even if both parties agreed, the order was without jurisdiction due to failure to record reasons.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Kessowji Issur v. G.I.P Ry. Co.	Appellate Court has no jurisdiction to admit additional evidence without proper authority.	The Court held that the additional evidence was wrongly admitted and did not form part of the evidence in the appeal.
Gajadhar Prasad v. Mt. Lohia	Failure to record reasons for admitting additional evidence is sufficient ground to allow an appeal.	The Court relied on this precedent to hold that omission to record reasons invalidated the admission of evidence.

Court's Reasoning and Analysis

The Court analyzed the provisions of Order 41, Rule 27 of the Code of Civil Procedure, which permits an appellate Court to admit additional evidence only if reasons for such admission are recorded. The lower appellate Court allowed additional evidence without recording any reasons, violating this mandatory procedural requirement. The Court referred to authoritative precedents establishing that admission of evidence without jurisdiction or recorded reasons is impermissible and vitiates the appeal. Although the respondent argued that both parties consented, the Court emphasized that such consent cannot cure a jurisdictional defect. Furthermore, the Court found that the additional evidence influenced the appellate Court’s decision in favor of the defendant, who was the appellant before the lower appellate Court. Consequently, the Court concluded that the appeal must be allowed, the decree set aside, and the case remanded for rehearing with strict compliance to procedural rules.

Holding and Implications

The Court allowed the appeal, set aside the decree of the lower appellate Court, and remanded the case for rehearing. The lower appellate Court may admit further evidence only upon strict compliance with the provisions of Order 41, Rule 27 of the CPC, including recording reasons for admission. The costs of the appeal were to follow the result. No new precedent was established beyond reaffirming existing procedural requirements for admission of additional evidence on appeal.

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Mohesh Chandra Shaw v. Bipin Behari Khan

1. The first point taken in this appeal is that certain additional evidence has been wrongly admitted by the lower appellate Court. We have heard the learned pleaders on both sides and we think this objection is maintainable and that in consequence the appeal must be remanded for a further hearing. It appears that after the appeal was partly heard the learned District Judge allowed the appellant to file certain documents and ordered a relay of certain boundaries by a Commissioner. He states in his judgment that

“this was done on appeal at the request of the appellant in order to check the previous maps.”

2. The only section of the Code of Civil Procedure which provides for taking further evidence in a Court of appeal is O. 41, R. 27, and that rule requires

“wherever additional evidence is allowed to be produced by an appellate Court the Court shall record the reason for its admission,”

3. Here no reason has been recorded. In the well-known Privy Council case of Kessowji Issur v. G.I.P Ry. Co. (1) it was held at p. 390 that the appellate Court had no jurisdiction to admit the additional evidence that it was wrongly admitted and did not form part of the evidence in that appeal and in the case of Gajadhar Prasad v. Mt. Lohia (2) it was held that the omission of the learned Judge to record any reason for the admission of the additional evidence was alone a sufficient ground for allowing the appeal. It is contended on behalf of the respondent that both parties wanted this evidence to be taken. This is not clear from the order sheet but even if it were it would not validate an order made without jurisdiction.

4. It is not contended that it is stated in the judgement that the result of the inquiry that was ordered was unfavourable to the appellant before him and that the appeal was decided in his favour not on the basis but in spite of this further evidence. It appears however from one part of the learned District Judge's judgment that he put some reliance on the Commissioner's relay that is the further report that was submitted to him in deciding in favour of the defendant who was the appellant before him. So we are unable to hold that the admission of this evidence did not affect the decision.

5. Whether the evidence was admitted under Cl. (a) or Cl. (b) of sub-S. (1), O. 41, R. 27, sub-S. (2) requiring reasons to be recorded is equally applicable. We must therefore allow this appeal set aside the decree of the lower appellate Court and send the case back to that Court for being reheard. It will still-be open to the learned District Judge, if sufficient grounds are made out for the taking of further evidence to do so. But before doing so he must strictly comply with the provisions of O. 41, Section 27 of the CPC. Costs of this appeal will side the result.

V.B/R.K

6. Appeal allowed.

Mohesh Chandra Shaw v. Bipin Behari Khan

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondent's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Mohesh Chandra Shaw v. Bipin Behari Khan

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