AMANULLA Vs. KISTOOR CHAND
HIGH COURT OF RAJASTHAN
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(1.) THIS is an appeal against the judgment of the Revenue Appellate Authority, Kota, dated 29-6-1965, under which the Revenue Appellate Authority had set aside the order of the trial court and remanded the case for taking evidence in respect of some documents which were produced in the appellate court. These documents were copy of Khata St. 1996 to 1999, copy of jamadandi St. 2012to2015, copy of register of mutation No. 1940, copy of Khata No. 199 St. 1996 to 1999, and application in original made by Kastoor Chand dated 28-7-1965 The learned Revenue Appellate Authority observed that he considered it necessary that the case should be reinvestigated. Furthermore, he stated that the counsel for the respondent had objected to the admissibility of those documents, but as they were copies of the public documents, they could not easily be fabricated and he thought it proper in the interest of justice that they should be brought on record.
(2.) A preliminary objection was raised by the counsel for the respondents alleging that as no objection had been taken in the first court of appeal to the admissibility of this evidence, the same could not be taken now. This, however, is not borne out by the record as would be clear from the judgment of the Revenue Appellate Authority, wherein he has clearly stated that the counsel for the appellant had raised an objection to the admission of this evidence.
The counsel for the appellant urged that the learned Revenue Appellate Authority should not have allowed the respondent to fill in the lacuna in evidence. The law on the point is laid down in K. Venkataramiah as follows: - "the object of Rule 27 (2) clearly is to keep a clear record of what weighed with the appellate court in allowing the additional evidence to be produced, whether this was done on the ground (i) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause. Where a further appeal lies from the decision of the appellate court such recording of the reasons is necessary and useful also to the court of further appeal for deciding whether the discretion under the rule has been judicially exercised by the court below. The omission to record the reason must, therefore, be treated as a serious defect. Even so, the provision is not mandatory and the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission. It is true that the word "shall" is used in Rule 27 (2), but that by itself does not make it mandatory. "
Defining the phrase 'any other substantial cause' their Lordships held "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 (l) (b) of the Code. " They further observed. "such requirement of the court is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. "
The same rule was repeated in the Municipal Corporation of Greater Bombay vs. Lala Pancham (A. I. R. 1965 Supreme Court 1008),, wherein their Lordships observed "under Order 41, Rule 27, the appellate Court has the power to allow a document to be produced and a witness to be examined. But the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not enable the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only in the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence. "
The Rajasthan High Court in Bhagchand vs. Mt. Jeetbai (A. I. R. 1951 Rajas-than 147) held that "admission of additional evidence at an appeal stage is a very exceptional procedure and no party should be allowed to produce such evidence unless the court requires it to be produced to enable it to pronounce judgment or for any other substantial cause. An order under Rule 27, Cl. 1 (b) cannot be made to enable a party to fish out evidence in order to prove his case and make up a lacuna which then existed. A party who had certain important document all along with it but failed to file the same before the trial court without any apparent cause cannot be allowed to file it at the stage of second appeal. " We shall now proceed to apply the principles laid down above with regard to the application of Order 41, Rule 27 to the facts of the case before us.
The main point for determination is whether there was "any other substantial cause" for the Revenue Appellate Authority to order admission of these documents. An application was filed on 28-7-1965 before the Revenue Appellate Authority, requesting for the admission of the documents in question. The reason given therein is that it was not possible to get in time copies of these documents from the Assistant Collector, as the file was missing in the tehsil record. The learned Revenue Appellate Authority considered, and we think rightly, that this evidence was necessary in order to enable him to pronounce the judgment. It cannot be considered in this case that he wanted to pronounce the judgment in a particular way or to fulfil the lacuna of the parties. There is no doubt that without examining this evidence a lot of material in this case would have remained obscure and he could not have pronounced the judgment in a satisfactory manner. No doubt, he has not given detailed reasons why he considered these documents necessary to be admitted, but that, as we have explained above, and as has been held by the Supreme Court, is itself not mandatory. He has stated in his judgment that these documents being copies of public record, could not be fabricated, and they throw light on material question of transfer of possession of the land in dispute; and he considered it necessary that in the light of these documents further enquiry should be made into the dispute. We do not think that he, in any way, committed breach of the legal principles stated above. Though the powers under Order 41, Rule 27 are exceptional in nature, but they have to be exercised in a case as the present one. For these reasons, we see no force in this appeal and reject the same. .;
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