Decided on January 27,1967

DEVI LAL Respondents


- (1.) THIS appeal against the order of the Revenue Appellate Authority, Kota, dated 31. 8. 1965, has arisen under the following circumstances.
(2.) THE appellants Phool Chand and others had filed a suit under sec. 183 of the Rajasthan Tenancy Act read with sec. 43-A of the Act, in the court of the Sub-Divisional Officer, Jhalawar. THE suit was decreed on 9. 8. 1964 and an appeal was filed by the respondents in the court of the Revenue Appellate Authority, Kota. Before the date of hearing of the appeal on 16. 6. 1965 the respondents filed an application under Order 41, Rule 27 of the Code of Civil Procedure before the Revenue Appellate Authority requesting for admission of the additional evidence in the form of certified copies of some documents on the ground that they have been mentioned in the written statement. THEy were certified copies of public record and the plaintiff had admitted them in his plaint. THEy could not be produced during the trial as they were not available then. THEse documents consisted of the following: - (1) Copy of application on behalf of Phoolchand appellant, dated 12. 2. 1947. (2) Copy of order of the Nizamat Pachpahar dated 25. 8. 1947. (3) Copy of order Mahakma Mal Sadar dated 13. 4. 1967. (4) Copy of proposals of the Revenue Department, Jhalawar State, dated 15. 4. 1934. The Revenue Appellate Authority allowed this additional evidence at the same time accepting the appeal set aside the judgment and decree under appeal, and directed the trial court to proceed with the trial de novo. The present appeal has been filed impugning this order of the Revenue Appellate Authority. We have heard the counsel for the parties. The order of the Revenue Appellate Authority was attacked by the learned counsel for the appellant on two grounds; (1) the appellate court should not have admitted this additional evidence as it only fills a lacuna in the evidence produced in the trial court; (2) he should not have upset the judgment and decree of the trial court, but should have proceeded under Rule 28 of Order 41. We shall now proceed to examine both these contentions. The law on the point is laid down by the Supreme Court in K. Venkataramiah V. A. Seetharama Reddy (A. I. R. 1963 Supreme Court 1526) 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 vicious 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 (1) (b) of the Code. Their Lordships 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". Let us now examine the impugned order in the light of these observations. So far as the first document is concerned, a request was made in the trial court for its admission, but the trial court refused to admit it. The learned Revenue Appellate Authority thought that it ought to have been admitted. Clearly, the order of the learned Revenue Appellate Authority cannot be assailed as it strictly conforms to the provision of Order 41, Rule 27 (1) of the Civil Procedure. So far as the documents (2), (3) and (4) are concerned, their admission was sought as evidence for the first time in the appellate court. But it cannot be said that they were meant only to fill in a lacuna. These documents were copies of public records which were either judgments of courts or of the Mahakma Mal Sadar. They were mentioned in the written statement. These were the documents regarding which it can be said that even though the court finds that it is able to pronounce the 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 its judgment in a more satisfactory manner".-The learned Revenue Appellate Authority in his judgment has not given detailed reasons for admitting these documents, but as stated above, it is not mandatory that the detailed reasons should be given. He has stated that these documents were the certified copies of public record. They cannot be fabricated and learned Revenue Appellate Authority considered that there was a substantial cause for the admission of these documents is implicit in his reasoning given above, though we may state that it would have been better if such reasons were stated explicitly and in greater details so as to avoid any objection against the order. This, however, in no way, means that the order of the learned Revenue Appellate Authority should be set aside because of lack of those reasons in detail. The second contention raised by the learned counsel for the appellants seems to us to be more valid. If the Revenue Appellate Authority required additional evidence for a substantial cause, he had no reason to set aside the order of the trial court. For that, he must examine the evidence and reasoning given in the judgment of the trial court, which in this case he failed to do. The proper procedure for him was to follow R. 28 of O. 41 which says that whenever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send when taken to the Appellate Court. As stated by Chitaley in his commentary under this Rule, the lower court taking evidence under this Rule acts in a ministerial capacity, and the whole record after taking of the additional evidence by the lower court is sent to the appellate court for decision on the judgment of the lower court after taking this additional evidence into account. The learned counsel for the respondents only urged that the learned counsel for the appellants had misinterpreted Rule 28, but showed us no authority to the contrary. On the other hand, it has been observed in Kirti Bhusan Singh vs. Dipti Bikash Bahadur (A. I. R. 1966 Patna 142) as follows : "the wholesale remand of the case to the trial court in exercise of inherent jurisdiction for taking additional evidence and then dispose it of according to law is bad, being in contravention of the specific provisions of law, as provided in Rules 27 and 28 of Order 41 of the Code of Civil Procedure". The appellate court in such cases, therefore, cannot remand the whole case in the exercise of inherent jurisdiction under sec. 151 C. P. C. as inherent jurisdiction cannot be invoked against specific provisions of law. For the reasons, given above, we partly accept this appeal, set aside the order of the Revenue Appellate Authority so far as it relates to upsetting the order of the trial court and trying the case de novo, and modify the same by directing that the record of the case may be sent to the trial court for admitting the additional evidence and its rebuttal concerning documents (1) to (4), already admitted by the Revenue Appellate Authority. The record of the proceeding will thereafter be sent to the Revenue Appellate Authority for deciding the appeal taking into consideration the judgment of the trial court and the evidence already on record, as well as in the light of this additional evidence. . ;

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