LAXMINARAYAN DEEPCHAND MAHESHWARI Vs. BHIKU PUNJAJI LEWA
LAWS(BOM)-1972-8-14
HIGH COURT OF BOMBAY
Decided on August 01,1972

Laxminarayan Deepchand Maheshwari Appellant
VERSUS
Bhiku Punjaji Lewa Respondents

JUDGEMENT

CHANDURKAR, J. - (1.) [His Lordship after setting out the facts of the case, proceeded.] Two questions are raised by Shri Mandlekar appearing on behalf of the appellants in this appeal. The first question is that exh. D -29 should not have been permitted to be brought on record and the second question, which is the only substantial question, which has been argued, is that additional evidence could not be admitted in a second appeal since, according to the learned Counsel, the provisions of Order XLI, Rule 27, Code of Civil Procedure, are not applicable to second appeals.
(2.) SO far as the first contention is concerned, we have already pointed out that exh. D -29 which was the original Gat -book was sent for in order to prove one of the documents which was1 allowed to be produced by Deshmukh J. as additional evidence. This was the right hand page of the Gat -book of which only the left hand page was filed on record. This document which was produced with the application as additional evidence was held to be proved, but by agreement of parties the original Gat -book exh, D -29 was permitted to remain on record. It would not, therefore, be correct to say that any document in addition to those which were permitted by Deshmukh J. to be produced, have now been allowed to be filed by the defendants. It was at the request of the parties that exh. D -29 was allowed to be kept on record for the purpose of verifying the correctness of the record made in the right hand page of exh. D -29 which was filed as additional evidence. The certified copy of exh. D -29 is already accepted as exh. 28 and when exhs. 24 and 28 have to be considered together both of them could be looked at the same time from the book exh. 29 of which both these documents are copies. The first contention must, therefore, be rejected. In support of the argument that there is no jurisdiction in a second appeal Court to admit additional evidence, the learned Counsel for the appellants have relied on two decisions, (1) Balvant Yadneshwar v. Srinivas Appaj' AIR[1959] Mys. 244, and (2) Subba Raja v. Narayana Raja. : AIR1954Mad1074 . In the Mysore case a learned Single Judge of that Court has held that provisions of Order XLI, Rule 27, Code of Civil Procedure, do not apply to second appeals and that no document can be allowed to be produced in a second appeal. The learned Judge has based this view on a construction of Section 103 of the Code of Civil Procedure and for that construction has relied on certain authorities cited by him. After referring to these authorities, which we shall discuss later, the learned Judge has held (p. 246):.As above mentioned, the only occasion when in a second appeal the High Court can go into a question of fact is circumscribed by the provisions of Section 103, Civil P.C. One of the conditions for such going into the questions of fact tinder that section is when the evidence on record is sufficient to determine any issue of fact necessary for the disposal of the appeal. This necessarily implies that even if the evidence on record is insufficient, the High Court cannot allow the evidence to be supplemented for the purpose of going into a question of fact. If so, it follows that the provisions of R. 27 of Order XLI, Civil P.C. cannot apply to second appeals. To allow fresh evidence in second appeals would amount to going into a question of fact even where the evidence on record is insufficient. This would be contrary to the provisions of Section 103, Civil P.C. Having gone through the several decisions cited by the learned Judge in support of his proposition and having considered at some length the several provisions of the Code of Civil Procedure, we are inclined to take the view that the proposition that under no circumstances additional evidence can be admitted in a second appeal is rather broadly stated by the learned Judge. The Madras decision is also based on the authorities relied upon by the Mysore High Court.
(3.) SECTION 100 of the Civil Procedure Code deals with the jurisdiction of the High Court in a second appeal and it is worded as follows: 100. (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to a High Court, on any of the following grounds, namely: - - (a) the decision being contrary to law or to some usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; (c) a substantial error or defect in the procedure provided by this Code or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. Sub -section (2) is not material. Section 101 provides that no second appeal shall lie except on the grounds mentioned in Section 100. Now, Section 103 is as follows: 103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue of fact necessary for the disposal of the appeal which has not been determined by the lower Appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in Sub -section (1) of Section 100. The several rules in Order XLI of the Code of Civil Procedure deal with appeals from original decrees. Rule 27 of Order XLI, as framed by this Court and which was in force when Deshmukh J. passed his order allowing production of additional evidence, is 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 the time when the decree or order under appeal was passed or made, or (c) 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. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. Order XLII of the Code of Civil Procedure, which deals with appeals from appellate decrees, has only one rule and that rule provides that the rules of XLI shall apply, as far as may be, to appeals from appellate decrees. Now, Rule 1 of Order XLII, thus makes applicable such provisions of Order XLI as are possible to be applied in the case of appeals from the appellate decrees. The, view which seems to have been taken by the Mysore High Court appears to be that the applicability of the provisions of Order XLI, Rule 27, of the Code of Civil Procedure in a second appeal is ruled out because of the fact that the power of the High Court to decide a question of fact is circumscribed by Section 103. It has, therefore, to be found out whether on a proper construction of provisions of Section 103 of the Code of Civil Procedure it can be said that that provision in any way disables the High Court to decide a question of fact in a second appeal. Section 103 has to be read with Section 100 of the Code of Civil Procedure. Section 100 provides that a second appeal shall lie to the High Court on any of the grounds specified in Clauses (a) to (c) of that section. It is well established that a finding of fact given by the first appellate Court will, in a case where any of the Clauses (a), (b) and (c) is attracted, be vitiated and is liable to be set aside. It is not the law that under no circumstances the High Court sitting in second appeal can interfere with a finding of fact. If the finding of fact is vitiated by an error of law, then that finding will not be binding in second appeal. The grounds on which a finding of fact may be vitiated are limited, no doubt, by the provisions of Section 100 of the Code of Civil Procedure. Now, if a finding of fact is vitiated on a ground which is covered by Section 100 of the Code, the question is what further course the High Court is to follow in a second appeal. Does it have jurisdiction to give a fresh finding in place of a finding which has been vitiated or has it the only alternative to remand the appeal back to the first appellate Court, or in a given ease, to the trial Court to give a finding of fact afresh because the finding of fact given by the lower appellate Court or given by the trial Court and confirmed by the lower appellate Court has been set aside. Now, the provision analogous to Section 103 was not to be found in the Code of Civil Procedure, 1882. Section 584 of that Code was in the same terms as Section 100 and Section 585 was in the same terms as Section 101 of the Code of Civil Procedure, 1908. Section 586 was in the same terms as Section 102 of the 1908 Code except that the amount of the value the subject of the matter was Ks. 500 which was also the figure before Section 102 was amended by Act 66 of 1956. Then the last provision in Chapter 42 of the Code of Civil Procedure, 1882, dealing with appeals from appellate decrees was Section 587 which provided that the provisions contained in Chapter 41 shall apply, as far as may be, to appeals under this Chapter and to execution of decrees passed in such appeals. Under the old Code of 1882 since there was no provision analogous to Section 103 of the Code of Civil Procedure, 1908, a view was taken by several High Courts that though the lower appellate Court had not determined an issue of fact and though there was sufficient evidence on record, the High Court could not itself determine it but could only remand the case for such determination. It was this disability in the High Court to determine an issue of fact which the lower appellate Court had not determined though there was evidence, that had to be got over and Section 103 which was then introduced in the 1908 Act enabled the High Court to determine an issue of fact itself though that issue was not determined by the lower appellate Court. Then came the amendment of 1926 by which in place of 'but not determined by the lower appellate Court' after the words 'disposal of the appeal' the words added were 'which has not been determined by the lower Appellate Court or which has been wrongly determined by such Court by reason of any illegality, omission, error or defect such as is referred to in Sub -section (1) of Section 100.' The obvious purpose of making this amendment in Section 103 was to give jurisdiction to the High Court to decide a question of fact not only in a case where an issue of fact was not determined by the lower appellate Court, but also in those cases where a decision on an issue of fact has gone wrong or was vitiated because of any illegality, omission, error or defect as contemplated by the provisions of Sub -section (1) of Section 100 of the Code of Civil Procedure. Such a jurisdiction was obviously necessary in order to avoid unnecessary litigation because if the High Court did not have jurisdiction to decide a question of fact if the original decision was vitiated by the errors of kind enumerated in Section 100(7), the matter was required to be remanded back to the first appellate Court. This jurisdiction to decide a question of fact in the circumstances referred to in Section 103 can be exercised by the High Court if according to the High Court evidence on record was sufficient, As we read Section 103 we find that it is merely an enabling provision which enables the High in a given case if the evidence on record is sufficient in its view to give a finding on an issue of fact where either that issue has not been determined by the first appellate Court or that has been wrongly decided having regard to the provisions of Section 100(1) of the Code of Civil Procedure. It is difficult to read the provision in Section 102 as placing any restriction on the power of the High Court in the matter of determination of an issue of fact. Section 103 does not lay down by itself as to what the High Court is to do if according to it the evidence on record is not sufficient so as to enable it to decide an issue of fact. Section 103 does not purport to cover that field at all and if in a given case the High Court finds that the evidence on record is not sufficient, then it is open to it to make such orders as may be permissible under other provisions of that Code. No doubt, setting aside a finding of fact and sending the matter back to the first appellate Court is one such alternative, but we fail to see why it must be said to be the only alternative. In a given case, where it is found by the High Court that the evidence on record is not sufficient before it to arrive at a finding of fact properly and a party produced additional evidence in the second appellate Court which enables the Court to clinch the matter at issue or enables it to pronounce a proper judgment, there is nothing in Section 103 which would prevent the High Court from taking on record such evidence. Construing the provisions of O, XLI, Rule 27, it has been held by the Supreme Court in K. Venkataramiah v. Seetharama Reddy : [1964]2SCR35 , that under Rule 27(1) of Order XLI the appellate Court has the power to allow additional evidence not only if it requires such evidence 'to enable it to pronounce judgment', but also for 'any other substantial cause,' and there may well be cases where even though the Court finds that it is able to pronounce judgment on the state of record as it is and so it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains: obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner, such a case will be one for allowing additional evidence for any other substantial cause under Rule 27(1)(b) of the Code. The sufficiency of evidence contemplated by Section 103 of the Code is sufficiency for the purpose of passing or pronouncing a proper judgment. If in a given case the High Court comes to the conclusion that a finding of fact is vitiated and that for the purpose of pronouncing a proper judgment the evidence on record is not sufficient and the evidence sought to be made available by a party under Order XLI, Rule 27, of the Code of Civil Procedure, fills up that lacuna so that if that is taken into consideration a proper judgment can be pronounced, we fail to see anything in the provisions of Section 103 which would restrict the powers of the High Court to admit such additional evidence.;


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