Decided on November 23,1953

Venukuri Krishna Reddi And Anr. Appellant
Kota Rami Reddi And Ors. Respondents


Venkatarama Aiyar, J. - (1.) THIS is an appeal by the plaintiff against the judgment of Panchapakesa Aiyar J, in S. A. No. 2159 of 1945. The suit was for recovery of possession of eight items of Immovable properties on the ground that they belonged to one Buchipudi Kami Reddi and that the plaintiff and defendants l and 2 were entitled to them as his reversioners. The following genealogical table will bring out the relationship of the parties as set out in the plaint. The plaintiff alleged that after the death of Rami Reddi, his widow and his daughters had effected alienations of the suit properties without any necessity, that those alienations were not binding on the reversioners and that the plaintiff was entitled to partition and delivery of one -third share therein. Defendants 1 and 2 admitted the claim of the plaintiff. The other defendants contested the suit mainly on the ground that the properties did not devolve on Lakshmamma as the widow of Rami Reddi but that the brother of Rami Reddi who took the properties by survivorship had settled them on her for her lifetime in lieu of her claim for maintenance. They also contended that the alienations were supported by necessity and binding on the reversioners. Defendants 7 to 12 raised a further plea that Rami Reddi had no daughter of the name of Mahalakshmamma and that the plaintiff and the first defendant were not reversioners to his estate. The District Munsif who tried the suit held that the plaintiff has established the relationship set out in the plaint, that the suit properties belonged to Rami Reddi and that the alienations were not binding on the reversioners. He accordingly granted a decree for partition and delivery of one -third share of the suit properties with mesne profits in favour of the plaintiff. There was an appeal by defendants 8 to 12, 15 and 20 to 32 in respect of items 2, 3, 2/3rd share of item 4 and item 8, A. S. No. 436 of 1943 on the file of the Subordinate Judge of Guntur. The fourth defendant also preferred an appeal. A. S. No. 125 of 1944 in the court, of the Subordinate Judge of Guntur and that related to 62 cents in item No. 1. There was no appeal in respect of the other items of properties and the defendants who were interested in those items were not even parties to the above appeals.
(2.) AT the hearing of the appeals, A. S. No. 436 of 1943 and A. S. No. 125 of 1844, an application was made for admission of fresh documents. The same was ordered and the documents were marked as Ex. D. 9 series. Relying mainly on those documents, the Subordinate Judge held that Mahalakshmamma was not proved to be the daughter of Rami Reddi and that, therefore, the plaintiff was not the reversioner to his estate. He also held that the suit properties did not belong to Rami Reddi. On these findings, he set aside the decree of the District Munsif and dismissed the suit not only as against those defendants who had filed the appeals but also against the other defendants who had not. This he did in exercise of his powers under Order 41, Rule 33. The plaintiff appealed to this court against this decision, S. A. No. 2159 of 1945. That was heard by Panchapakesa Aiyar J. who agreeing with the Subordinate Judge dismissed the appeal. Against this judgment this appeal has been preferred under Clause 15 of the Letters Patent the learned Judge having granted leave therefor. On behalf of the appellants two contentions have been pressed before us: (1) that additional evidence was wrongly admitted in appeal by the Subordinate Judge and (2) that the dismissal of the suit even as against defendants who had not preferred any appeal was improper, On the first question the provision of law which authorises the taking of additional evidence in appeal is Order 41, Rule 27 which, as amended in Madras, runs as follows: "27(1) The parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court, but if: (a) the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the party seeking to adduce additional evidence satisfies the Appellate Court that such evidence notwithstanding the exercise of due diligence was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed, (c) the Appellate Court requires any documents 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 examined. (2) Wherever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission."
(3.) THE complaint of Mr. B. V. Ramanarasu, the learned advocate for the appellants, is that the Subordinate Judge gave no reasons for admitting additional evidence in appeal, that the requirements of Order 41, Rule 27(2), C. P. C. have not been complied with and that in consequence Ex. D. 9 series ought to be excluded from consideration. It is not in dispute that no order was passed recording reasons for admitting Ex. D. 9 series in evidence and that there has thus been a contravention of Order 41, Rule 27(2). We are not disposed to hold that this is a mere formal defect. When a suit has been fully tried and judgment given, it is a serious matter to permit the trial to be reopened in the court of appeal by admitting fresh evidence. Such a course must tend to prolong the litigation and result in failure of Justice. That is why Order 41, Rule 27(1) confines the power to admit additional evidence in appeal within narrow limits. Apart from cases in which evidence is wrongly rejected in the trial court for which provision is made in Order 41, Rule 27(1)(a), reception of evidence is limited to two classes of cases: Where the parties seek to get it admitted, Rule 27 (1)(b) and where the court requires it to pronounce judgment Rule 27(1)(c). The scope of the two provisions is different. While Rule 27(1) (b) enables the parties to apply for admission of additional evidence and that is subject to the condition that such evidence could not have been produced in the trial court in spite of diligence, Rule 27(1)(c) empowers the court to admit additional evidence whenever it feels that the same is necessary to enable it to pronounce judgment. While under Rule 27(1)(b) an application for admission of additional evidence should be filed with promptitude and could be heard at any time, the proper occasion to make an order for admission under Rule 27(1)(c) is when the court finds during the hearing of the appeal that there is some lacuna. Thus the conditions under which admission of additional evidence could be made differ as they fall under Order 41, Rule 27(1)(b) or Order 41, Rule 27(1)(c) and this difference is no formal matter as it is well settled that evidence admitted without satisfying the conditions of Order 41, Rule 27(1) must altogether be excluded from the record.;

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