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Documents citing Kessowji Issur vs The Great Indian Peninsula Railway on 9 May, 1907

Andiappa Pillay By His Authorised ... vs Muthukumara Thevan And Anr. on 27 February, 1912

3. I am unable to accept this contention. The circumstances under which the additional evidence in that case was admitted were wholly different from the circumstances in the present case. In the present case, the District Judge, after hearing the arguments by the Pleaders on both sides, observed that the District Munsif had not sufficiently considered the olugu account (Exhibit 1), that he had, in fact, misunderstood it, that only part of it was filed and that certain documents which the appellant before him then produced would show that the District Munsif's explanation of it could not be correct. The District Judge also did not think that there could be two different tenures ("pannai" and "kudi" lands) in one and the same survey number, and he desired the remainder of the olugu account to be filed in order to see whether such entries could be found in other numbers entered in that account. It seems to me to be clear that the District Judge was in doubt as to whether there could be "pannai" and "kudi" lands in the same number and required farther evidence in order to clear up this point. He also required further evidence to test the District Munsif's explanation of the effect of certain entries in the olugu account, which explanation seemed to the District Judge to be wrong. He, therefore, needed or required the further evidence mentioned in his order to be produced in order to enable him to properly decide the appeal before him.
Madras High Court Cites 6 - Cited by 6 - Full Document

Indrajit Pratap Sahi vs Amar Singh on 15 May, 1923

24. Both in case of Sreemanchunder Dey v. Gopaulchunder Chuakerbutty and Kessowji Issur v. Great Indian Peninsula Railway their Lordships were dealing with the power of the appellate Court to require evidence to be produced for the purpose of enabling the Court to pronounce judgment. Those cases did not refer to the right of one or other of the parties to produce evidence which he considered essential for the determination of the action. Under Order XLVII, Rule X, which reproduces Section 623 of the Civil Procedure Code Act XIV of 1882, a party has a right to apply for a review of judgment to the Court that has decided the case before an appeal has been preferred. The grounds on which such an application may be made are specifically set forth in Rule 1. In the present case an appeal has been preferred and a review, therefore, was out of the question; and the defendants took the only and proper course, viz., to apply to the High Court, which was in possession of the case, to admit the additional evidence either under the general principles of law or under the specific provisions of Rule 27, which lays down that the appellate Court may for any other substantial cause (vix, other than those particularly specified) allow such evidence or documents to be produced or witnesses to be examined. Rules of procedure are not made for the purpose of hindering justice. As the application is now before their Lordships for the admission of the documents to which reference has already been made, it is desirable to observe that there is no restriction on the powers of the Board to admit such evidence for the non-production of which at the initial stage sufficient ground has been made out. It is only necessary to refer to page 289 Al of Mr. Bentwich's "Privy Council Practice" where he has set out the cases in which the power has been exercised.
Bombay High Court Cites 4 - Cited by 41 - Full Document

Bhupendra Singh vs Smt. Namrata Saraswat on 23 April, 2026

"5.... The words 'or for any other substantial cause' must be read with the word 'requires'", which is set out at the commencement of the provision,so that it is only where, for any other substantial cause, the appellate court requires additional evidence, that this rule would apply as noticed by the Privy Council in Kessowji Issur v. Great Indian Peninsula Railway Co. It is under these circumstances such a power could be exercised Therefore, when the first appellate court did not find the necessity to allow the application, we fail to understand as to how the High Court could, in exercise of its power under Section 115 CPC, have interfered with such an order, particularly when the whole appeal is not before the Court. It is only in the circumstances when the appellate court requires such evidence to pronounce the judgment the necessity to adduce additional evidence would arise and not in any other circumstances. When the first appellate court passed the order on the application filed under Order 41 Rule 27 CPC, the whole appeal was before it and if the first appellate court is satisfied that additional evidence was not required, we fail to understand as to how the High Court could interfere with such an order under Section 115 CPC."
Allahabad High Court Cites 26 - Cited by 0 - Full Document

Mallappa Yellappa Bennur vs Nagappa Hanmanta Saler on 28 August, 1931

9. In the present case, the order has been vigorously attacked before me. The grounds of attack were of a general nature, mainly dependent on the consideration why the powers under Order XLI, Rule 27, should be very sparingly brought into operation. It has been objected--and with good ground--that the result of the exercise of this power in the present case has been that the learned Appellate Judge has paid undue attention to evidence adduced before himself: that instead of directing his attention to the whole of the evidence including the evidence adduced in the court of the first instance, he seems to have altogether overlooked the evidence previously adduced, though prima facie the evidence originally adduced would (at least in the eyes of the parties) be more important than such evidence as had been admitted for the purpose of filling in a lacuna discovered by the Appellate Court. This error, into which the court is apt to fall, was strikingly illustrated by the leading case of Kessowji Issur v. Great Indian Peninsula Railway 34 I. A. 115 : 9 Bom. L.R. 671 : 31 B. 381 : 2 M.L.T. 435 : 11 C.W.N. 721 : 17 M.L. J. 347 : 6 C.L.J. 5 : 4 A.L.J. 461 (P. C.). It was strenuously argued that the learned Judge in the present case has made himself open to the same charge, and that it is necessary to remand the case for reconsideration of the evidence, not only the evidence that the learned Judge himself took, but the evidence that was already on the record. After considering, however, the whole of the judgment and all the materials on which the decision is given, I feel that there is no necessity for prolonging the litigation any further.
Bombay High Court Cites 4 - Cited by 0 - Full Document

Brahma Subbayya vs Kanala Ranga Rao on 13 August, 1924

5. A second argument has been advanced, namely, that an order for admission of additional evidence cannot be made upon a special or preliminary application, but that the proper occasion for it is when the appeal is heard, and the evidence is examined by the Appellate Court. In this case, I am satisfied that the District Judge has made the order in question, in the course of the hearing of the appeal and has not dealt with the application as independent of and detached from the appeal. On this short ground, this argument fails; but I am prepared to hold that there is no warrant for the position that when the application is by the party to receive additional evidence, the Appellate Court cannot make an order upon the application without hearing the appeal. Here again, the case relied on by the petitioner is Kesswaji Issur v. Great Indian Peninsular Railway Co., Ltd. (1907) I L R 31 B 381 : 17 M L J 347 (P C). But it will be seen from the observations of the Lords of the Judicial Committee that the limitation referred to above applies only to cases, where the Court of its own motion makes an order for admission of additional evidence. The reason is obvious. The Court cannot make up its mind to receive additional evidence acting ex mero motu, without going into the evidence and becoming satisfied that there is a lacuna or defect. It is a power to be exercised by the Court on its own initiative and that function can be performed only when the Court being appraised of all the facts appearing on the record sees reason to' think that there is a gap to be filled up or a defect to be remedied. If a party makes the application, entirely different considerations apply; and I do not see why the application should not be dealt with, independent of the appeal, although in most cases, it would no doubt be desirable to hear the application and the appeal together even then if possible. Even then, it may not become necessary to hear the appeal fully and the Judge may make up his mind to allow or reject the application very early during the hearing of the appeal.
Madras High Court Cites 2 - Cited by 1 - Full Document

Mallappa Yellappa Bennur vs Nagappa Hanmanta Saler on 28 August, 1931

9. In the present case, the order has been vigorously attacked before me. The grounds of attack were of a general nature, mainly dependent on the consideration why the powers under Order XLI, Rule 27, should be very sparingly brought into operation. It has been objected,-and with good ground,-that the result of the exercise of this power in the present case has been that the learned appellate Judge has paid undue attention to evidence adduced before himself: that instead of directing his attention to the whole of the evidence including the evidence adduced in the Court of the first instance, he seems to have altogether overlooked the evidence previously adduced, though prima facie the evidence originally adduced would (at least in the eyes of the parties) be more important than such evidence as had been admitted for the purpose of filling in a lacuna discovered by the appellate Court. This error, into which the Court is apt to fall, was strikingly illustrated by the leading case of Kessowji v. Great Indian Peninsula Railway. It was strenuously argued that the learned Judge in the present case has made himself open to the same charge, and that it is necessary to remand the case for reconsideration of the evidence, not only the evidence that the learned Judge himself took, but the evidence that was already on the record. After considering,' however, the whole of the judgment and all the materials on which the decision is given, I feel that there is no necessity for prolonging the litigation any further.
Bombay High Court Cites 2 - Cited by 0 - Full Document

Garden Reach Spinning And ... vs Secretary Of State For India on 27 July, 1914

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.
Calcutta High Court Cites 3 - Cited by 2 - Full Document

Jagdeo Lal vs Ram Lagan Singh on 4 August, 1919

6. Now it is not suggested that this evidence was tendered in the Court of first instance and was rejected by that Court. That is not the suggestion of Mr. Gour Chandra Pal, who has with my leave appeared to argue the case on behalf of the opposite party. It is not suggested by the learned District Judge that there was an inherent defect or laouna in the evidence as it stood which prevented him from disposing of the case either in favour of the appellant or the respondent. The learned District Judge thought that further evidence was necessary. In my opinion Order XLI, Rule 27, gives him no power at all to remand the case to the Court of first instance for the purpose of recording further evidence. The point was discussed in the case which I have just cited and which is reported as Kessowti Issur v. Great Indian Peninsula Railway Company (1). I may draw the attention of the learned District Judge to the weighty words of Lord Robertson in the case whidh I have just cited. With reference to this very point, Lord Robertson said as follows:
Patna High Court Cites 3 - Cited by 0 - Full Document

Kripa Sindhu Biswas vs Sudha Sindhu Biswas And Ors. on 6 April, 1973

50. The following decisions about the reception of additional evidence were placed before us from the Bar on both sides: Kessowji Issur v. Great Indian Peninsula Railway, (1907) 34 Ind App 115, Mohomed Khaleel Shirazi and Sons v. Les Tanneries Lyonnaises, 53 Ind App 84 (88) = (AIR 1926 PC 34; Parsotim v. Lal Mohar, 1931] L.R. 58 I.A. 254 , Lachmeshwar Prasad Shukul v. Keshwar Lal Chaudhuri; 1940 FCR 84 = AIR 1941 FC 5, Surinder Kumar v. Gian Chand; , Nair Service Society Ltd. v. K. C. Alexander; , K. Venkataramiah v. Seetharama Reddy, , Jayanta Mohan Chatterjee v. Jagat Mohan Chatterjee; and also four decisions all reported in (1907) 6 Cal LJ. They are Ram Ratan Sahu v. Mohant Sahu, (1907) 6 Cal LJ 74; Hazari Mull v. Janaki Prosad, (1907) 6 Cal LJ 92; Ramyad Sahu v. Bindeswari Kumar Upadhya, (1907) 6 Cal LJ 102 and Udit Chobey v. Rashika Prasad Upadhya, (1907) 6 Cal LJ 662.
Calcutta High Court Cites 35 - Cited by 8 - Full Document
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