The High Court, while hearing a second appeal, cannot go into the question of fact and, therefore, the application for admitting additional evidence in a review petition in a second appeal cannot be entertained.

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, AIR 1954 Mad 1074 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 1st 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 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 document

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