Andhra HC (Pre-Telangana)
A. Radhakrishna Rao And Ors. vs The Assistant Commissioner, ... on 10 October, 2001
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, C.J.
1. Whether the provisions of Order 41 Rule 29 of the Code of Civil Procedure, 1908 (for short 'the Code') are mandatory or directory in nature is the question referred to. The fact of the matter is as follows:
FACTS:
2. The appellants herein filed O.A. No. 141 of 1988 before the Deputy Commissioner, Endowments, Kakinada to declare that the National Senior Basic School, Kakinada which is being run by them is a private institution and not a public charitable institution; thus, the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987 is not applicable. The said original application was dismissed holding that the school is a public charitable institutions as it is being run by donations from the public whereagainst the petitioners herein preferred an appeal which is marked as Appeal Suit No. 163 of 1992 on the file of the District Judge, East Godavari. The said appeal was also dismissed. Hence the present revision petition is filed assailing the order of the lower appellate court.
3. Before adverting to the question posed in this reference, we may notice that the aforementioned question had not specifically been raised in the revision petition nor the same arises in the facts and circumstances of this case. When an application for leading additional evidence inter alia on the ground that the documents were produced in another suit on the file of the Subordinate Judge, Rajahmundry and they had not been able to get them back so as to produce the same before the Deputy Commissioner, was not considered and the matter was decided without such evidence being led, Civil Revision Petition No.1160 of 1995 was filed before this Court and a Division Bench of this Court, by an order dated 7.7.1999 directed the lower appellate court to decide the appeal afresh on merits after considering the application for leading additional evidence on merits. As regards genuineness of the documents it was alleged that they were on the records of the Court in another suit. This court noticed that the District Judge did not deal with the application finally on the said petition observing that the documents sought to be brought on record do not advance the case of the petitioner and that they are not relevant. It is on that ground alone the District Judge was directed to consider the merit of the matter afresh for leading additional evidence. Pursuant to or in furtherance of the said direction the impugned order has been passed. Before us no order has been placed whereby and whereunder the application for adduction of additional evidence has been allowed nor any material has been placed before us to show as to how the said documents had been taken in evidence. The learned single Judge in the order under reference merely stated:
It appears from the record that on behalf of the appellants in the Court below, i.e., the petitioner in O.A. No. 141 of 1988 on the file of the Deputy Commissioner of Endowments, Kakinada, additional evidence in Exs.A1 to A35 had been marked. As I can see from the judgment, except making a casual reference, specific points had not been framed and they were not specifically considered by the learned District Judge.
Rules 27, 28 and 29 of Order 41 of the Code read thus:
Production of additional evidence in Appellate Court.
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 (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witnesses 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.
Mode of taking additional evidence.
28. Wherever 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 it when taken to the Appellate Court.
Points to be defined and recorded.
29. Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the points to which the evidence is to be confined, and record on its proceedings the points so specified.
4. A bare perusal of the aforementioned provisions clearly shows that additional evidence cannot be adduced as a matter of right. Before directing adduction of additional evidence the Court is required to apply its mind with regard to the factors relevant therefor. It has to come to the conclusion that the evidence as it stands is inherently defective, as for instance, when the lower court has omitted to take the evidence of an attesting witness to a mortgage deed. Until this is done, the appellate court has no power to admit additional evidence. The Privy Council in KESSOWJI ISSUR v GIP RLY, (1907) 31 Bom 381 : 34 IA 115 held:
....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 Court, of fresh evidence and the application is made to import it.
5. The rule does not authorise the admission of additional evidence, it is trite, for removing lacunae and filling in gaps in evidence nor does it allow an unsuccessful litigant in the lower court to patch up weak points in the case and to fill up omissions in the court of appeal. The Court has discretion in the matter but such discretion is circumscribed by the limitations specified in the rule. The appellate court must require the additional evidence before the same can be directed to be adduced. Order 41 rule 28 merely provides for the mode and manner of taking such evidence. The documents essential for just decision may justify adduction of additional evidence at appellate stage. The Court is bound to record reasons therefor. In SECY. OF STATE v H.C.I. SOCIETY, AIR 1931 PC 143 the Privy Council stated the law thus:
6. He was dealing with the words of S.568 of the Code of 1882, but they are substantially the same as those of O. 41, R. 27, of the present Code. 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. Wherever the Court adopts this procedure it is bound by R. 27 (2) to record its reasons for so doing and under R. 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified.
7. The Madras High Court followed the aforementioned Privy Council decision in SRINIVASAM PILLAI v ALAGAPPA CHETTIAR, AIR 1938 Mad 372 stating:
This rule serves a very useful purpose, namely it ensures that the Appellate Court will consider exactly on what points there is a lacuna which requires to be rectified and also that an opportunity will be given to both sides to adduce additional evidence on the particular points on which additional evidence is allowed to be taken in appeal.
8. A learned single Judge of this Court in SATHREVADA VALLIAMMA v S. SABHAPATHI, held that the defect if any is curable one and the same does not go to the extent of upsetting the judgment of the appellant court. Another learned single Judge in M. ADINARAYANA v M. CHINTANNA (DIED) PER L.Rs., , however, held that the documents which had been taken in as additional evidence had not been preceded by an order supported by reasons, should be discarded and excluded from being considered.
9. Order 41 rule 29 no doubt uses the word "shall". The Court has an obligation to fulfil the conditions laid down in terms of Order 41 rule 29 of the Code. But the same, in our opinion, does not and cannot mean that in the event of non-compliance despite the fact that the parties had not been prejudiced, the same has to be discarded. Order 41 rule 29 lays down a procedure. Procedures can be moulded. They as is well known are hand mades of justice.
10. Another factor must be taken notice of. By reason of an omission on the part of the Court to comply with the provisions contained in Order 41 rule 29 of the Code a party cannot suffer. The Court in a given case shall on the basis of the pleadings of the parties and the circumstances upon which such additional evidence had been directed to be adduced may itself try to find out the points which were required to be specified to which the evidence was to be confined and proceed to deal with the matter. In majority of the cases the points to be specified may be found out from the application for adduction of additional evidence and rejoinder thereto. Even if the same can be found out from the order itself, the Court will not set aside the judgment. In a given case the Court may also remit the matter back to the lower appellate court for assigning reasons if it is unable to do so. There cannot further be any doubt whatsoever that at the appellate or revisional stage, the Court shall mainly address itself as to whether such direction to take additional evidence was within the jurisdiction of the court or not or the court has exercised its jurisdiction properly or not. It will not set aside an order only on mere technicality. We, therefore, answer the reference in the following terms:
Although in Order 41 rule 29 the word "shall" has been used, the same does not signify mandatory in the sense that if a court has failed to specify the points to which the evidence is to be confined the same would, by itself, lead to discarding of the evidence without further probing into the matter as to whether such non-specification of points prejudice the parties or not. We may, however, mention that in a case where the entire case is remitted back with a direction to take additional evidence, Order 41 rule 29 may not have any application.
11. Hence, the matter is remitted to the learned single Judge.