JUDGMENT
Madan Mohan Prasad, J.
1. This application is directed against an order refusing leave to adduce additional evidence under Order 41 Rule 27 of the Code of Civil Procedure.
2. It appears that the plaintiffs-petitioners filed a suit for setting aside certain sale deeds executed by the widow of plaintiff Jaglal’s father’s brother on the ground that she had no right to execute the sale deeds. The opposite party defendants alleged that her husband having separated during his lifetime from his brother, the widow had the right to execute the documents aforesaid. The trial court dismissed the suit which resulted in an appeal. In the appellate court the petition under Order 41, Rule 27 was filed for the purpose of taking a certified copy of a compromise petition in a Land Registration case of the year 1922 into evidence, wherein there were recitals to show the joint ness between Jaglal and his father’s brother. A certified copy of the said document it is said, was tendered in evidence in the trial court. The original had been called for and a witness was examined to prove the report of destruction of the original record. It appears, however, that no witness was examined to prove the execution of the document for compromise, it is said that it was due to oversight that the said document could not be marked as an exhibit. Hence, the prayer before the lower appellate court for the opportunity to bring the document on record.
3. The court below refused the prayer on several grounds. Firstly, it said that it, appeared that there was no witness available in the trial court to prove the document; secondly, that it had not been stated in the application before the court, that the appellants were prepared to adduce oral evidence to prove the document; thirdly that the court did not require the document for pronouncing judgment; fourthly, that the case was not covered by Clause (!)(b) of Rule 27 of Order 41 ; and, lastly, that the prayer could not be granted under Section 151 of the Code.
4. Mr. Tara Kant Jha appearing for the petitioners has contended, firstly, that in the matter of requirement of the court for the purpose of pronouning judgment, it is not the arbitrary discretion of the court, but the discretion being judicial, the court has first to read the entire evidence and see whether the court requires the document in order to be able to pronounce judgment according to the interest of justice. It is said that there is nothing to show that the court had applied its mind to the evidence already on record. Secondly, it has been urged that the court below had anticipated that there would be no witness available to prove the document, that stage not having arisen yet. The court had first to make up its mind whether it required the evidence and then direct the parties concerned to produce the evidence to prove the document. Counsel has placed reliance on a decision in the case of K. Venkataramiah v. A Seetharama Reddy .
5. On the other hand, it has been urged by Mr. Sarkar for the opposite party that the counter-affidavit would show that the appellants themselves had insisted on getting a decision in respect of their application before the hearing of the main appeal itself and further that the question of additional evidence was argued with reference to the merit of the appeal also. Secondly, he has urged that since the court below was called upon to give its verdict at this stage, it did so and it had the jurisdiction to do so. Thirdly he has submitted that it is open to the court below itself to revise its own order in this respect and consider the matter afresh at the time of deciding the appeal on its merit, and for that reason this court should not interfere.
6. With regard to the first contention of Learned Counsel for the petitioners, it must be observed that it is well settled that the question, whether additional evidence should be allowed, arises and ought to be disposed of only at the stage the court has gone into the evidence before it and in the light thereof found some lacuna in the evidence or the need for some evidence in order to be able to pronounce judgment in accordance with the requirements of justice. In the case of Kessow ji v. G. I. P. Railway 34 I.A. 115 quoted in Arjan Singh v. Kartar Singh upon which Learned Counsel for the opposite party placed reliance, it was held that:
the legitimate occasion for the application of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Ct., of fresh evidence & the application is made to import it.
The same view was reiterated in the case of Parsotim v. Lai Mohan 58 I.A. 1951 S.C. 193. The Supreme Court, held that “the true test, therefore, is whether the appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced” Since the aforesaid decision, there has been the decision of the Supreme Court by a larger Bench consisting of five learned judges of the court in the case of A. Venkataramian v. A. See tharama Reddy (supra) and some other decisions of different High Courts, e.g., Chunilal Ojha v. Mul Shankar Ojha .
In the case of K. Venkataraman there was the question of age of Seetharama Reddy, one of the respondents who had been declared elected and whose election was challenged before the Election Tribunal. Considerable amount of oral and documentary evidence had been adduced before the Tribunal on the question of Seetharama Reddy’s age. The Tribunal had rejected the aforesaid evidence. The High Court, however, considered it necessary to allow additional evidence to be given on the point and on its basis decide the case. It was thus that the question was raised before the Supreme Court with regard to the propriety of taking in of additional evidence. Their Lordships held that it was not improper for the High Court to take in that evidence, and they said that the requirement was the requirement of the High Court and it would not be right for them to examine the evidence to find out whether the High Court required that evidence. The learned judges further observed as follows:
Apart from this, it is well to remember that the appellate court has the power o allow additional evidence not only if it required that such evidence to enable it to pronounce judgment but also for any other substantial cause. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the 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 quoted with approval what the privy council said in Parsotim’s case (supra):
The legitimate occasion for the exercise of this discretion is not when-ever before the appeal is heard a party applies to adduce afresh evidence, but ‘when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.
Their Lordships further reiterated what was laid down by the Privy Council, viz.,
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.
7. In the case of Chunilal Ojha (supra), a Division Bench of the Orissa High Court admitted evidence “in order to clear up an important matter…necessary for the purpose of enabling this court to come to a proper finding in this appeal on the most fundamental issue in the case…
8. In the present case, the petitioners ‘grievance is that the court below has arbitrarily stated that it does not require the evidence sought to be adduced without consideration of the other evidence on record and without applying its mind to the question as to whether it would be necessary in the interest of justice to take in the document. In the counter-affidavit, however, the opposite parties have alleged that it was the petitioners themselves who had insisted on disposal of the application aforesaid prior to the hearing of the appeal. Further it is said that the petition was argued “even with reference to the merit of the appeal”. On this basis, Learned Counsel for the opposite party has urged that the court had merely accepted the insistent demand of the petitioners themselves and the verdict having been given now, they must abide by it. I am unable to accept the contention of learned Counsel. It may be at the insistent demand of one party or the other, but the court must act according to the law and not according to the dictates of the parties, if it does not do so, it acts either illegally or, in suitable cases, with material irregularity in the exercise of jurisdiction. In the impugned order, I do not find anything except the statement that the court does not require it. It does not even say as to whether it has read the evidence on record and that it would be able to pronounce the judgment in accordance with law and with justice without taking the additional evidence on record, Obviously, therefore, this application has been disposed of at a premature stage.
9. The other argument of Learned Counsel for the petitioners is also substantial One of the reasons given by the court below for rejecting the application in question is that there were no witnesses available to prove the document in the trial court, and it has not been “asserted that there are witnesses available to prove the contents or writing of the compromise petition”. The court below has misdirected itself on this point. The availability or non-availability of a witness to prove a document is not the criterion upon which the court decides as to whether it would be able to pronounce judgment in the absence of the evidence. That question arises only after the court has decided the main question in the affirmative. The grievance of the petitioners is that the court had not granted an opportunity at all to them to produce evidence to prove the document in question, and it was merely a surmise made in anticipation. It seems to me that unless the court had decided in favour of the petitioners the question of asking them as to whether there was anybody alive who could prove the document of the year 1922 did not arise, and for that reason alone the circumstance could not be taken into consideration against the petitioners.
10. In the result, the order passed by the court below is set aside. The court below will now hear the appeal itself and then, in accordance with law, decide whether in the light Of the decisions on the point the document is necessary to enable it to pronounce judgment in the case and do justice to the parties. This will of course be if the petition is pressed before the court below at the relevant time. In case the court decides in favour of the petitioners, it will then give an opportunity to the petitioners to produce the document and further give an opportunity to the opposite party to lead evidence in rebuttal. It will only be then that the court will pronounce the final verdict. In case, however, it decides that the documents not required or necessary to enable it to pronounce judgment, it will reject the petition and decide the appeal itself.
11. The application is accordingly allowed. In the circumstances of this case, there will be no order as to costs,