Andhra HC (Pre-Telangana)
Anisetti Bhagyavathi vs Andaluri Satyanarayana And Others on 3 February, 1992
Equivalent citations: AIR1992AP304, 1992(1)ALT455, AIR 1992 ANDHRA PRADESH 304, (1992) 1 ANDHWR 717, (1992) 2 CURCC 348, (1992) 1 APLJ 260, (1992) 1 ANDH LT 455, (1992) 1 LS 98
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER Syed Shah Mohammed Quadri, J.
1. This review C.M.P. is referred to a Division Bench by Neeladri Rao, J. observing that maintainability of the review petition depends on the question whether additional evidence can be permitted at the stage of second appeal. The learned Judge noticed that on the question whether additional evidence can be admitted at the stage of second appeal the judgment of a learned single Judge of this Court in Venku Reddi v. Pichi Reddi, AIR 1956 Andh Pra 250 is in conflict with the judgment of the Madras High Court in Subba Raja v. Narayana Raja, which was delivered prior to 5-7-1954.
2. The second appeal arose out of the suit filed for possession of plaint schedule premises. The suit was decreed by the trial Court. The first appellate Court confirmed the judgment and decree of the trial Court. The second appeal by the 1st defendant was dismissed. Thereafter the review petition was filed by the 1 st defendant on the ground that she discovered a new and important evidence which after exercise of due diligence was not within her knowledge and so it could not be produced by her at the time the decree was passed in the second appeal.
3. Sri T. Veerabhadraiah, the learned counsel for the review-petitioner, submits that O. 42, R. 1, C.P.C. makes the provisions of 0.41, C.P.C. applicable to second appeals, therefore, the petitioner is entitled to invoke the provisions of O. 41, R. 27, C.P.C. for adducing additional evidence which is a discovery of a new and important fact and this is also one of the grounds for seeking review.
4. Sri M.S.K. Sastry, the learned counsel for the respondent, on the other hand, contends that as the evidence cannot be reassessed in a second appeal the petitioner was not entitled to file additional evidence in the. second appeal, therefore, he cannot be permitted to seek review of the judgment in second appeal on the ground of discovery of a new and important fact.
5. To appreciate the question that arises in this review petition, viz,, whether additional evidence can be allowed to be let in in second appeal, it would be appropriate to refer to the scheme of the Code with regard to production of the evidence in the suit/ appeal. In regard to documentary evidence Order 13, Rule 1, C.P.C. enjoins that the parties or their pleaders shall produce at or before the settlement of issues all the documentary evidence of every "description in their possession or power, on which they intend to rely, and which has not already been filed in Court, and all documents which the Court has ordered to be produced. Rule 2 of 0.13 directs that no documentary evidence in possession or power of any party which should have been, but has not been, produced in accordance with the requirements of Rule I, shall be received at any subsequent stage of the proceeding unless good cause is shown to the satisfaction of the Court for the non-production thereof and the Court is required to record the reason for receiving such evidence. However, this does not apply to documents which are produced for cross-examination of the witnesses of the other party, or documents which are, handed over to a witness merely to refresh his memory, in so far as the oral evidence is concerned it can be adduced after the settlement of issues in accordance with the provisions of 0.16, C.P.C. Section 96, C.P.C. provides that an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Order 41 deals with the procedure regarding appeals from original decrees. From a combined reading of S. 96 and 0.41, Rr. 1 and 2, C.P.C. it is clear that the ground of objection to the decree under appeal can be both on the questions of fact as well as on the questions of law. Rule 27 of O. 4! declares that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. Clauses (a) and (b) of Rule 27 provide circumstances under which the appellate Court may allow additional evidence to be produced by the parties. In regard to the appeals against the appellate decrees, commonly known as 'second appeals', the provisions of Sections 100 to 103 and O. 42, R.I, C.P.C. apply. Section 100 provides second appeal to the High Court from every decree passed in appeal by any Court subordinate to it only if the High Court is satisfied that the case involves a substantial question of law. The appellant is required to state precisely the substantial question of law involved in the appeal and the High Court is required to formulate the question if it is satisfied that a substantial question of law is involved in the appeal. The appeal is to be heard on the question so framed. However, the respondent is entitled to argue that the case does not involve the question as framed. From the Proviso to sub-section (5) of the S. 100, C.P.C. also it is clear that the power of the Court to hear the second appeal extends only to substantial questions of law raised at the time of hearing though not framed by it initially, if it is satisfied that the case involves such questions after recording reasons. Order 42 which prescribes the procedure for hearing of the second appeal says that the Rules of Order 41 shall apply, so far as may be, to appeals from appellate decrees.
6. It is in this background we have to consider the question of admission of the additional evidence in the second appeal. It has been noticed above that the scope of the second appeal is confined to substantial questions of law framed at the stage of admission of the appeal or subsequently at the time of hearing by the High Court. The finding of fact recorded by the first appellate Court are binding on the High Court. Section 103 gives a very truncated power to the High Court in regard to the issues of fact. It gives discretion to the High Court to determine any issues necessary for the disposal of the appeal which has not been determined by the lower appellate Court or the Court of first instance or which has been wrongly determined by the Courts below by reason of a decision on such question of law which had arisen in the second appeal. From the provision of Section 103 it is clear that the scope for determination of the issue necessary for the disposal of the second" appeal is available only if the evidence on record is sufficient. There is thus, no scope for leading of additional evidence in the second appeal.
7. We shall now refer to the decisions cited at the bar.
8. In Paramasivudu v. Subbanna, AIR 1919 Mad 17 d Division Bench of Madras High Court held that no general rule could be laid down with regard to admission of additional evidence in second appeal and that each case had to be dealt with with reference to its own merits and the existence of the sufficient cause referred to in 0.41, R. 27, C.P.C. On the facts of that case the Bench held that there could be no objection to receive the judgment of the High Court which was not in existence at the time of passing of decree and which required no further evidence explain it and which could not be produced earalier because it was not in existence either on the ground of principle or convenience.
9. In Viathinatha v. Kuppa, AIR 1919 Mad 1166 a Full Bench of the Madras High Court by majority held that the High Court could not interfere with an order of the lower appellate Court rejecting an application made to it by a party to the appeal for admission of certain material evidence discovered since the date of decree appealed against which was not available to the said party with the exercise of diligence during the trial of the suit. The question whether additional evidence can be admitted in second appeal did not arise for consideration of the learned Judges.
10. In Subba Raja's case ) (supra) the learned Judge of the Madras High Court held that having regard to the provisions of S. 103, C.P.C. the second appellate Court could not admit evidence and give its decisions on a question of fact and that the provisions of S. 103 were sufficiently clear to exclude the operation of O. 41, R. 27, C.P.C. This judgment was dissented by Chandra Reddy, J. (as he then was) in Venku Reddi's case (AIR 1956 Andh Pra 250) (supra). In that case the learned Judge took the view that there is nothing either in S. 103 or in 0.41, R. 27, C.P.C. which excludes"the applicability of the latter provision to the second appeals and that the terms of R. 27, C.P.C. are general in application and in an appropriate case it would be open to the High Court in the second appeal to admit additional evidence. It was pointed out that the learned single Judge of the Madras High Court in Subba Raja's case (supra) did not notice the judgment of the Division Bench of the Madras High Court in Pramasivudu's case (AIR 1919 Mad 17) (supra) and that the principle was stated by him very broadly which was opposed to the said judgment. It may he noted here that the Division Bench of the Madras High Court in Pramasivudu's case (supra) declined to lay down a general principle on the question of admissibility of additional evidence in second appeal; however on the facts of that case admitted the additional evidence in the second appeal. The learned Judges did not consider the scope of the power of the High Court under Ss. 100 and 103, C.P.C. as they stood then. Having regard to the amended provisions of Ss. 100 and 103, I.P.C. we are clear in our view that the High Court in hearing second appeal cannot re-appraise the evidence and determine the question of fact.
11. In Jasubha Manubha v. Raisinh Bapubha, a learned single Judge of the Gujarat High Court dissented from the view taken by Chandra Reddy, J. (as He then was) in Venku Reddi's case, AIR 1956 Andhra 250 (supra). Even this judgment was before the amendment of Ss. 100 and 103, C.P.C.
12. In Balai Chandra v. Shewdhari Jadav, the Supreme Court considered the question whether the High Court of Calcutta was right in taking additional evidence under 0.41, R. 27 after allowing amendment of the pleadings in an appeal under Cl. 15 of the Letters Patent. Their Lordships observed that the Court hearing the second appeal after granting amendment could not take over the function of the trial Court or the first appellate Court and undertake appreciation of evidence and record findings of facts and that that was not the function envisaged by the Code of the Court hearing second appeal under S. 100, C.P.C. and that was crystal clear from the provision contained in S. 103 which defines the power of the High Court to determine a question of fact while hearing second appeal. It has been further pointed out that that power (under S. 103, C.P.C.) is limited to evidence on record which again is sufficient to determine an issue of fact necessary for the disposal of the appeal and which has not been determined by the lower appellate Court or which has been wrongly determined by such Court. In view of the judgment of the Supreme Court in Balai Chandra's case (supra) in our view, the view taken by Chandra Reddy, J. (as he then was) in Venku Reddi's case (AIR 1956 Andh Pra 250) (supra) is no longer good law.
13. Thus, from the above discussion it is clear that the High Court while hearing second appeal cannot go into the question of fact. Therefore, the application for admitting additional evidence in a review petition in second appeal, whether such evidence was within the knowledge of the party seeking production of the same, or could not have been produced with due diligence at the time the decree was passed in second appeal cannot be entertained. 0.42, C.P.C. which says that the provisions of 0.41 would apply to second appeal, has qualified the same by adding the expression "as far as may be". Therefore, the contention that in view of the provisions of 0.41, R. 27, C.P.C., additional evidence has to be permitted in second appeal, cannot be accepted.
14. We accordingly answer the question referred to us.
15. Question answered.