Parsotim Thakur vs Lal Mohar Thakur on 26 March, 1931
If the additional
evidence was allowed to be adduced contrary to the princi-
ples governing the reception of such evidence, it would be a
case of improper exercise of discretion. and the additional
evidence so brought on the record will have to be ignored
and the case decided as if it was non-existent. Under Order
XLI, rule 27, it is the appellate court that must require
the evidence to enable it to pronounce judgment. As laid
down by the Privy Council in the well-known case of Kessowji
Issur v.G. I. P. Railway(1)' "the legitimate occasion for
the application of the present rule is when on examining the
evidence as ii stands, some inherent lacuna or defect be-
comes apparent, not where a discovery is made, outside the
court, of fresh evidence and the application is made to
import it;" and they reiterated this view in stronger terms
even in the later case of Parsotim v. Lal Mohan (2). The
true test, there fore, is whether the appellate court is
able to pronounce
(1) 34 I. A. 115 (2) 58 I. A. 254
264
judgment on the materials before it without taking into
consideration the additional evidence sought to be adduced.
In the present case, there is nothing to show that there
was any lacuna or gap which had to be filled up and that the
appellate court felt the need for the omission being sup-
plied so that it could pronounce a judgment; to put it the
other way round, it does not appear, and it was not stated,
that the District Judge felt himself unable to come to a
decision without copies of the settlement registers that
were sought to be put in before him for the first time. On
the other hand, the District Judge made up his mind to admit
the certified copies of the kami beshi and muntakhib asami-
war registers even before he heard the appeal. The order
allowing the appellant to call the additional evidence is
dated 17th March, 1942. The appeal was heard on 24th April,
1942. There was thus no examination of the evidence on the
record and a decision reached that the evidence as it stood
disclosed a lacuna which the court required to be filled up
for pronouncing its judgment. In the circumstances, the
learned Judges of the High Court were right in holding that
the District Judge was not justified in admitting this
evidence under Order XLI, rule 27.