Karnataka High Court
Sangawwa vs Shankarappa on 28 June, 1991
Equivalent citations: AIR1992KANT211, I(1992)DMC316, 1992(1)KARLJ42, AIR 1992 KARNATAKA 211, (1992) 1 KANT LJ 42, (1992) 1 DMC 316, (1992) MARRILJ 72, (1991) 3 CURCC 556, (1991) MATLR 402
JUDGMENT
1. This Appeal is directed against the order of the learned Principal Civil Judge, Bijapur, passed in R. A. No. 95 of 1979 on 9-4-1980.
2. At the time of admission, the substantial question of law formulated by this Court is as follows :
"Whether the Appellate-Court was justified in reversing the decree made by the trial-Court granting maintenance?"
3. The appellant filed a suit for maintenance against the respondent-husband at the rate of Rs. 1,200/- per annum. According to the plaint averments, she lived for about 4 years happily with the respondent-husband and since she was not able to give birth to any children, the respondent and his family members used to pick-up quarrel and the respondent went to the extent of obtaining consent for a second marriage and also directed the appellant-wife to put her signature on the divorce deed. The respondent and his family members were treating the appellant with cruelty and used to beat her severely. Later, she has been driven out of the house by her husband. Therefore, she was forced to return to her parents house and she is not willing to return to the house of the respondent and she apprehends danger to her life and she has also been deserted without any reason or rhyme by the respondent.
4. The marriage between the parties has been admitted. The respondent denied all the material facts alleged by the appellant and according to him, the appellant was in the habit of visiting her parents house with short intervals and ultimately, she left the house voluntarily and stayed in the house of her parents.
5. The trial Court relying on the evidence of both the parties, both oral and documentary, decreed the suit granting maintenance at the rate of Rs. 1,200/- per annum from the date of the suit.
6. The learned Prl. Civil Judge, Bijapur, has allowed the appeal of the husband and set aside the order of the trial Court. The first Appellate Court has framed points for determination as per the issues framed by the trial Court and after discussing the evidence placed before the trial Court, came to a different conclusion and allowed the appeal. The first Appellate Court sought for cor-roboration regarding the beating of the appellant by the respondent and also held that the appellant has deserted the respondent without any reasonable or probable cause.
7. Mr. Savanur, learned counsel for the appellant has assailed the order of the first Appellate Court on various grounds. The principal ground, the learned counsel wanted to rely at this stage was the admitted second marriage of the respondent which is said to have been proved in a case filed by the respondent for restitution of conjugal rights in M.C. No. 12 of 1976. Learned counsel also filed the Certified copy of the Voters' List which document was relied on in Matrimonial case. The learned counsel filed an application along with an affidavit sworn to by the appellant to receive these two documents as additional evidence under Order 41, Rule 27 of the Code of Civil Procedure.
8. Sri Albal, learned counsel appearing for the respondent has initially submitted that this Appeal is not maintainable as no substantial question of law has been involved and consequently, the application filed by the appellant to take additional evidence is not maintainable.
9. It appears, no objection has been filed to this application I.A.I.
10. With regard to the first contention of the respondent, that there is no substantial question of law is involved in this Appeal cannot be accepted as the first Appellate Court failed to note the manner in which the evidence of the parties is to be appreciated in matrimonial case.
11. The trial Court on the basis of the demeanour of the witnesses, accepted the case of the appellant that she has been treated with cruelty and due to imminent danger to her life, she was forced to leave the matrimonial house and live in her parents house, Tn Matrimonial case, proof beyond reasonable doubt is not postulated where human relationship is involved and eye-witnesses are difficult to obtain.
12. The evidence is to be appreciated' taking into consideration the status of the parties and the conditions, under which, they were living. Corroboration is necessary but for want of corroboration, the case of the affected spouse cannot be thrown over-board. The cruelty alleged will largely depends upon the type of life the parties are accustomed or their economic or social conditions. Admittedly, the appellant is issuelcss and for the first four years, after the marriage, she was living happily. Incases of this nature, the conduct of the other spouse is most important in appreciating the differences between the parties.
13. The first Appellate Court has set aside the order on the points of dispute which is similar to the issues framed by the trial Court. On a perusal of the Judgment of first Appellate Court it is noticed that the learned Judge by picking some stray evidence here and there, has formed an opinion that the appellant has not proved her case. Re-appraisal of evidence by this Court in a Second Appeal is very much limited. Generally on a re-appraisal coming to a different conclusion than the| conclusion reached by the trial Court is totally forbidden in a Second Appeal filed under Section 100 of the Code. But it will not deter the Court in appropriate cases to interfere where the first appellate Court reverses the finding of the trial Court without considering the evidence as a whole but only by picking some stray answers here and there. This is so in a matrimonial case where the parties are proned to give evidence to their advantage. To defeat the claim of a female in a maintenance ease, it is not strange to note that the evidence will be created in most of the cases. Since the trial Court had the advantage of a close study of the parties and their conduct when they participated in their cases, and also the trial Court had the benefit of observing the demeanour of witnesses. Its finding on the facts should not be interfered lightly unless the Appellate Court is able to find out that the trial Court based its conclusion on irrelevant evidence or no evidence.
14. When we scrutinize the evidence of the appellant, the respondent has failed to challenge the cruelty attributed by the appellant and also the fact she has been driven out from the house and she has refused to come due to apprehension of. danger to her life. When such evidence is misread and misapplied by the first Appellate Court, this Court can set right such discrepancy in the second appeal. The trial Court found inconsistency in the evidence of respondent and his witnesses when they tried to prove the factum of desertion by the respondent.
15. In the light of the discussions made above, the finding recorded by the first Appellate Court on the question of cruelty and desertion is perverse.
16. During the pendency of this appeal, the appellant on 6-2-1991 filed an application and affidavit under Order 41, Rule 27 of the Code of Civil Procedure for an order to accept additional evidence by receiving the Certified copy of the Judgment and Decree dated 3-4-1984 in M.C. No. 12/76 along with a Voters List marked as Ex. P. 1. in the Court of the Principal Civil Judge, Bijapur.
17. It is contended in the affidavit that the respondent filed this case against the appellant for restitution of conjugal rights which came to be dismissed on 3-4-1984 long after filing of Regular Second Appeal before this Court. The Court below dismissed that petition on the ground that the respondent had married second time, viz., Smt. Subadra and he got children from her during pendency of the maintenance suit and its appeal before the Principal Civil Judge, Bijapur. She prayed to receive the same as additional evidence to claim maintenance on this ground.
18. The Respondent has not filed any written objection to this application.
19. In M.C. No. 12/76 the appellant also filed an application under Section 24 of the Hindu Marriage Act, 1955 and the Court allowed the application directing the respondent to pay Rs. 250/- to meet the expenses and Rs. 75/- towards maintenance during pendency of the case. This order was made on 19-1-1979.
20. Order 41, Rule 27 of the Code of Civil Procedure reads as follows :
"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 witness 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".
21. Section 107(d) of Civil Procedure Code empowers the Appellate Court to take additional evidence or require such evidence to be taken subject to such condition and limitation as may be prescribed. Order 41, Rule 27 of the Code prescribes the conditions and limitations in the matter. The rule first lays down that the parties to an appeal shall not be entilled to produce additional evidence, whether oral or documentary, in the Appellate Court. It then proceeds to lay down the classes of cases where the Appellate Court may allow additional evidence to be produced. One class is where the Court appealed from has refused to admit evidence which to ought have been admitted. The other class is where the Appellate Court requires such additional evidence for itself -- either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that when an additional evidence is allowed to be produced, the Court shall record the reason for its admission.
22. In Parsotim Thakur v. Lal Mohan Thakur, AIR 1931 PC 143, the Privy Council while discussing whether additional evidence can be admitted observed :
"It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it may be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent."
23. In this appeal, additional evidence is found necessary to be admitted as it required such evidence to pronounce the judgment or for other substantial cause. The substantial cause here is that, the appellant averred in her suit for maintenance that the respondent wanted to take a second wife and when consent is refused he has treated the appellant with cruelty. The first Appellate Court has disbelieved this cause for cruelty and dismissed the original suit of the appellant.
24. This position of law for admitting additional evidence under Order 41, Rule 27 of the Code is recognised in K.. Venkata-ramaiah v. A. Seetharama Reddy, , Das Gupta J., the learned Judge as he then was, held :
"Under R. 27(1), the appellate Court has the power to allow additional evidence not only if it requires 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 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 R.27(1)(b) of the Code."
25. Sri Albal, learned counsel for the respondent has submitted that the provisions of Order 41, Rule 27 of the Code are not applicable to second appeals and no document can be allowed to be produced in Second Appeal. The learned Advocate placed his reliance to a decision of this Court in Balwant Yadneshwar v. Srinivas Appaji Kulkarni, 1959 Mys LJ 581 : (AIR 1959 Mys 244).
26. In this case, there was a dispute in respect of a party wall. The defendant raised his Wall by 6' 6" without the consent of the plaintiff. A suit for mandatory injunction was filed to pull down the wall to its original position. The trial Court held that plaintiff is entitled to a mandatory injunction. In appeal, decree was confirmed. First Defendant has come up in Second Appeal. He sought to produce the documents by an application under Order 41, Rule 27 of the Code of Civil Procedure which are certified copies of 'pursis' passed one by each of the parties in the previous suit on the file of the Civil Judge, Jamkhandi.
27. In this context, the learned Judge after following the cases of Sundar Bibi v. Bishesharinath, (1887) ILR 9 All 93, Vali Muhammed v. Md. Baksh, AIR 1924 Lah 444; Shamsuddin Biswas v. Molannessa Bibi, AIR 1926 Cal 941 and Subbaraj v. Narayana Raja, , held :
"Under such circumstances, I find considerable difficulty in accepting the proposition that fresh documents can be admitted in Second Appeal under Order 41, Rule 27 of the Code of Civil Procedure."
28. The documents sought to be produced in the above case are purport to be certified copies of two memos, one by each party filed in an earlier suit. They are produced for showing that both the parties agreed to the erection of the portion of the wall in dispute. Their production was only to show implied consent in order to prove a pure question of fact.
29. With respect, I am unable to agree to the proposition that the provisions of Order 41, Rule 27 of the Code of Civil Procedure are not applicable to Second Appeals and no documents can be allowed to be produced in Second Appeals. If this proposition is accepted then the very object of S. 107(d) and O. 41, R. 27 will become inoperative to the appeals under Section 100 of the Code of Civil Procedure. It is one thing to say that the additional evidence which intends to deal with a pure question of fact is to be excluded then saying that the provision of Order41, Rule 27 is totally inapplicable to second appeals. Hence the contention of Sri A. V. Albal that the provisions of O. 41, R. 27, C.P.C. is not applicable to the second appeals is hereby rejected.
30. The next submission of Sri A. V. Albal is that if the additional documents are received as an additional evidence the respondent shall be accorded an opportunity to disprove the existence of such documents is not sustainable. The voters' list was admitted in evidence as Ex.D.1 in a case filed by the respondent and the document was admitted in the very presence of the respondent. Hence a second opportunity is legally unwarranted. The judgment in matrimonial case for restitution of conjugal rights, though not a judgment in rem but the judgment is binding the parties in personem and admissible under Section 41 of the Evidence Act without further proof. The finding of the competent Civil Court is not challenged further by the affected parly.
31. In M. C. No. 12 of 1976, the learned Civil Judge after exhaustively dealing in both oral and documentary evidence accepted the plea of second marriage of the respondent. This docs not require a reconsideration or reagitation. The M. C. case once remanded by this Court, finally decided on 3-4-1984. Hence the production of this judgment during pendency of this appeal does not cause any prejudice to the respondent. In fact this additional evidence assisted this Court to pronounce judgment and also the object of sustantial cause is fulfilled.
32. The appellant to get a paltry sum of maintenance, i.e., Rs. 100/- per month, is fighting these litigations from 14-6-1976.
33. In the result, this appeal is allowed. The judgment dated 9-4-1980 in R. A. No. 95 of 1979 passed by the Principal Civil Judge, Bijapur, reversing the judgment and decree dated 24-7-1979 passed in O. S. No. 156/76 on the file of the learned Principal Munsiff, Bijapur, is set aside. The judgment and decree in O.S. No. 156 of 1976 on the file of the Principal Munsiff, Bijapur, is hereby restored.
34. The respondent is liable to pay the cost of the appellant throughout. Advocate's fee in this appeal is fixed at Rs. 500/-
35. Appeal allowed.