Posted On by &filed under Calcutta High Court, High Court.

Calcutta High Court
Garden Reach Spinning And … vs Secretary Of State For India on 27 July, 1914
Equivalent citations: (1915) ILR 42 Cal 675
Author: Fletcher
Bench: Fletcher, Richardson


Fletcher, J.

1. In England you cannot ask for a review of judgment; you ask for appeal on the ground of new evidence. Here the document was not in existence.

2. In the cases of Ram Ratan Sahu v. Mohant Sahn (1907) 6 C. L. J. 74., Hazari Mall v. Janaki Prasad (1907) 6 C. L. J. 92., Ramyad Sahu v. Bindeswari Kumar Upadhay (1907) 6 C. L. J. 102. and Udit Chobey v. Rashika Prasad Upadhya (1907) 6 C. L. J. 662., in which Order XLVII Rule 1, had been discussed and it was held that it Was not only competent to a Court of Appeal, but it maybe its duty, under certain circumstances, to take notice of events which have happened since the order challenged in appeal was made. He also referred to the case of Kotaghiri Venkata Suhbamma Rao v. Vellanki Venkatarama Rao (1900) I. L. R. 24 Mad. 1, and Kessowji Issur v. The Great Indian Peninsula Railway Company (1907) I. L. R. 31 Bom. 381, to show that Order XLVII, Rule 1 does not authorize the review of a decree, which was right when, made, on the ground of the happening of some subsequent event. The only question is whether the fresh evidence is material and necessary to enable the Court to pronounce judgment.

Our. adv. vult.

Fletcher, J.

3. This is an application by the appellants for the admission of certain additional evidence in an appeal we are about to hear.

4. The appeal itself is with reference to the amount to be paid by the Government as compensation for the property of the appellants which ban been compulsorily acquired under the provisions of the Land Acquisition Act. The fresh evidence that the appellants wish to adduce consists of certain documents loading up to and resulting in a compromise of another case with reference to the acquisition of the premises of the British India Steam Navigation Company which adjoin the premises of the appellants.

5. The compromise with the British India Steam Navigation Company had not been arrived at when the lower Court gave judgment, nor when, the appeal was filed in this Court. The present application is opposed by the Secretary of State for India in Council, the respondent to the present appeal.

6. Now the powers of an Appellate Court in India So admit farther evidence arc governed by the provisions of Order XLI, Rule 27, which, so far as material, is in the following terms;

(1) The parties to an appeal shall not he entitled to produce additional evidence, whether oral or doenmentary, in the Appellate Court, But if.

(b) 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 al low such evidence or document to be produced, or witness to be examined.

7. The wording of the rule shows clearly that the power of an Appellate Court to admit further evidence is a very restricted one.

8. In the first place, the rule prohibits the parties to the appeal from producing farther evidence.

9. Next, the power of the Court to admit further evidence is only incase the Appellate Court “requires” the additional evidence “to enable, it to pronounce judgment, or for any other substantial cause.”

10. As has been pointed out, the word “requires” plainly means “needs or finds needful.” When therefore can the Appellate Court “require the additional evidence to enable it to pronounce judgment or for any other substantial cause” ? Manifestly not until the Appellate Court has examined the evidence on the record, and comes to the conclusion that the evidence as it stands is inherently defective. Until the Court has therefore examined the record, it is not in a position to say, whether the evidence is inherently defective and that it will require the further evidence to enable it to pronounce judgment or for any other substantial cause. A preliminary application such as the present is not warranted by the terms of Other XLI, Rule 27.

11. An application to admit fresh evidence discovered out of Court by the parties comes under Order XLVII, Rule 1, not under Order XLI, Rule 27.

12. It is said that the evidence was not in existence at the date of the trial and the case of Kotaghiri v. Vellamki (1900) I. L. R. 24 Mad. 1. 10. (2) was cited to show that such evidence is not admissible by way of review. The point does not arise in the present case and it is not necessary for us to decide whether such view is correct or not.

13. Order XLI, Rule 27, does not. I think, authorise an Appellate Court to admit fresh evidence, documentary or oral, and whether or not it was in existence at the time of the judgment of the lower court or at the time the appeal was preferred unless the Appellate Court after examining the evidence on the record comes to the conclusion that it requires the additional evidence in order to enable it to pronounce judgment, namely, that there is a lacuna or defect on the evidence on the record.

14. This appears to me to be the effect of the decision of the Privy Council in the case of Kessowji Issur v. Great Indian Peninsula Railway Co. (1907) I. L. R. 31 Bom. 381. I can find nothing in the judgment of their Lordships to suggest that new evidence discovered out of Court by the parties but which only came into existence after the filing of the appeal can be admitted on a preliminary application by the parties to the Appellate Court. Such a suggestion is negatived by the express words in Other XLI, Rule 27, that “the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary in the Appellate Court.”

15. I think, therefore, that we have no jurisdiction to assent to the present application. But even if we had such jurisdiction, I should, on the materials before us, refuse this application. The evidence the appellant company wish to put forward is to the following effect:

16. The British India Steam Navigation Co. were the owners of the premises adjoining those of the appellant company. Both the British India Co. and appellant company are represented in Calcutta by Messrs. Mackinnon, Mackenzie & Co., as also in London, although apparently the two companies have different Boards of Directors in London,

17. On the premises adjoining those of the appellant company, the British India Co. had a considerable coal business chiefly for the purpose of coaling their extensive fleet. This property of the British India Co. is known as “Bracebridge Hall.”

18. The same declaration under the provisions of the Land Acquisition Act was made in respect of the property of the appellant company, Bracebridge Hall and various other properties,

19. The British India Co. after the declaration preferred a claim for a very large sum amounting in the first instance to over one crore and 22 lakhs of rupees.

20. An award of 14 lakhs odd of rupees was made by the Land Acquisition Collector. The British India Company then required the matter to be taken before the Special Land Acquisition Judge. Negotiations were then opened between Sir Frederick Dumayne on behalf of the Calcutta Port Commissioners on the one hand, and in the first instance with Mr. Alexander MeLaurin Monteath and subsequently Lord Inch-cape on behalf of the British India Co. on the other hand. After long and protracted negotiations the case of the British India Co. was subsequently settled by a Cash payment of 28 lakhs of rupees to the British India Co.; and the grant of certain facilities by the Port Commissioners with reference to the coaling of the fleet of the British India Co. It is now alleged that the facilities granted to the British India Co. are more valuable than those enjoyed by them sit Bracebridge Hall, and therefore f the whole of the 28 lakhs was awarded in respect of the other items of their claim. On this footing, it is said that the Port Commissioners have paid the British India Co. in respect of the site of the Bracebridge Hall an amount three or four times larger than the amount paid to the appellant company, when in fact the land of the appellant company and Bracebridge Hall must be of substantially the same value. The appellant company, therefore, desire to give in evidence certain documents relating to the compromise of the claim of the British India Co. Two affidavits have been filed on the present application, one by Mr. Alexander McLaurin Monteath in support of the application and the other by Sir Frederick Dumayne in opposition thereto. Sir Frederick Dumayne is the Vice-Chairman and Chief Executive Officer of the Port Commissioners. There is a conflict between the statements contained in the affidavit of Mr. Monteath and those in the affidavit of Sir Frederick Dumayne. Now, it appears from the evidence that the negotiations, which led to the settlement with the British India Co., were opened early in January 1911. The negotiations no doubt were stated by Sir Frederick Dumayne to be “without prejudice to either side” and “confidential.” Mr. Sinha, on behalf of the Government, has argued that this would render all correspondence which passed between the parties thereto incapable in any event of being used in evidence even when a settlement was arrived at. I think Mr. Sinha placed his case too high. The affidavits do establish, however, that in addition to the correspondence interviews took place in the first instance between Monteath and Sir Frederick Dumayne with a view to a settlement of the case of the British India Co.

21. The negotiations in India closed in May 1911.

22. In June 1911, Sir Frederick Dumayne proceeded to England. It appears from his affidavit that the Port Commissioners had directed him to see Lord Inchcape with reference to compromising the British India Company’s case. He was also authorised to go as far as to make an offer of 25 lakhs of rupees for that purpose. Lord Inchcape and Sir Frederick Dumayne arrived finally at a settlement, viz., that the Port Commissioners should pay to the British India Co. 28 lakhs of rupees and give to the British India Company certain faeilities. Sir Frederick Dumayne has sworn in his affidavit that in the settlement he never contemplated paying 28 lakhs of rupees for the land, structures and machinery of the British India Co., but that ho agreed to this sum as a settlement of the whole case.

23. Lord Inchcape has not made an affidavit as to what took place between himself and Sir Frederick Dumayne. The Port Commissioners sanctioned with reluctance the settlement arrived at between Lord Inchcape and Sir Frederick Dumayne and recommended it to the Government for sanction and approval. The settlement was subsequently approved, of by the Government. This, however, was after the present case had been decided by the Special Judge and the present appeal filed.

24. Much stress had been laid by the appellants on the proceedings of the Special Land Acquisition Committee o£ the Port Commissioners of the 20th October 1911. No doubt the record of the proceedings is not very happily worded, but I cannot imagine that a public body like the Port Commissioners intended to pay the British. India Co. for their Laud a sum so vastly in excess of what they were paying to other parties and which would in the end result in their having to pay excessive sums for other lands acquired by them. For if this 28 lakhs was in fact paid only for the land, structures and machinery, this fact would he used in subsequent cases against the Port Commissioners as to the value of the lands acquired by them.

25. Sir Frederick Dumayne has sworn that he was fully cognisant of the prices paid by the Port Commissioners on other acquisitions and that what he wanted to settle was the whole case against the Commissioners. The total claim preferred by the British India Co. amounted to Rs. 1,22,40, 786-11-10. A largo number of the items in the claim would appear to be altogether untenable. One of the items in the claim was a sum of Rs. 37,01,940 “for low of time.” This item, was claimed for the difference between the time it would take to bring the vessels of the British India Co. alongside at Bracebridge Hall and that required to take them into the docks of the Commissioners.

26. It is difficult to imagine on what principle such a claim could be supported. The Port Commissioners were, however, in this difficulty that the Collector had allowed the sum of Rs. 1,27, 140-10-0 in respect of this item and so had admitted the claim in principle. The Court under the provisions of the Land Acquisition Act has no jurisdiction to reduce the amount awarded by the Collector and it may perhaps be doubted whether the Court has jurisdiction to re-allot over the different items of claim the aggregate amount allowed by the Collector. All the probabilities therefore suggest that the story told by Sir Frederick Dumayne in his affidavit that what he settled with Lord Inchcape was the whole case between the British India Co. and the Port Commissioners and that the sum of 28 lakhs of rupees was not paid to British India Co. in respect of the land, machinery and structures only, is correct. The only person who could have contradicted Sir Frederick Dumayne as to the terms arrived at in London between Lord Inchcape and himself, would be Lord Inchcape. If therefore we were to decide to permit the appellant company to adduce further evidence it would have to be the evidence of Lord Inchcape as to what were the terms of settlement between himself and Sir Frederick Dumayne. In that event, such evidence would have to be tested in the ordinary manner by cross-examination.

27. The letters that passed between Lord Inchcape and Sir Frederick Dumayne dated the 26th of January and the 13th of February 1912 suggest that Lord Inchcape did not consider that the sum of Rs. 28 lakhs had been paid to the British India Co. in respect of Bracebridge Hall and the structures and machinery thereon.

28. The statements in Sir Frederick Dumayne’s affidavit appear to me to agree with all probabilities of the case and are uncontradicted as to what was intended to be settled between him and Lord Inchcape. Even, therefore, if we have Jurisdiction to admit this further evidence on the materials before us I should refuse the appellant company leave to do so.

29. The present application is therefore dismissed with costs.

Richardson J.

30. I entirely agree with Mr. Justice Fletcher, whose judgment I have had the advantage of reading, that the application before us is not one which we have jurisdiction to entertain under Other XLI, Rule 27, And I wilt only add this that even if we had a power, co-extensive with the power of the Trial Court under Order XLVII to admit fresh evidence by way of review, I am not of opinion that the evidence tendered is evidence which ought to be admitted in the exercise of any such power. It is not evidence, the bearing of which on the issue which has to be determined is practically beyond the sphere of controversy or in any sense conclusive. On the contrary it is only necessary to read the affidavit on the one Hide and the counter affidavit on the other to show that matter is raised of a controversial and argumentative character. The question at issuo is the market value of certain land at a certain date. The agreement which it is sought to put in (together with letters and other documents leading up to it) was arrived at in another ease between parties one of whom is not a party to the present case and it was arrived at after the trial of the present case was concluded. By itself the agreement is of no use to the appellant company. It only shows that a lump sum was paid to the British India Co. in respect of the compulsory acquisition of their land and that in the same respect certain facilities were also promised to them by the Port Commissioners in connection with their coal tract. The land, it is true, adjoins the laud of the appellant company. But the compensation which the “British India Co. had claimed from the Collector was arranged under different heads many of which had nothing to do with the value of the land. Two or three items were withdrawn while the case was before the Collector, but the total claim which was subsequently carried before the Special Land Acquisition Judge was still very large. That claim was satisfied by the lump sum and the coaling facilities. Then comes the point how much of the money payment is to be allocated to the laud ? That depends on the further question what was the value assigned to the facilities P Both these questions are in serious dispute, each side endeavouring to fasten upon the other its own interpretation of the agreement. As might have been expected, when suck questions are debated between practical business-men, there is a ; good deal to be said-at any rate a good deal was said-on both sides. The difficulty of arriving at a decision s as to what was paid for the land is not diminished by the reflection that it was not the actual value of the land and the actual value of the facilities that has to be considered, bat what was in the minds of the parties to the agreement. What the appellant company is really trying to do is to fix upon the Port Commissioners an admission as to the value of the land acquired from the British India Co., and I merely add that for that purpose the value which the Port Commissioners attributed to the land (as to which Sir Frederick Dumayne’s affidavit is entitled to the greatest weight) is more important than the value which the British India Co, may have attributed to the land. But to my mind the doubts and difficulties which surround the evidence tendered is not only no recommendation, but is a complete bar, to its reception at this stage, even, as I have said, if we had a power to receive fresh evidence such as that conferred on the Trial Court by Order XLVII.

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