A second appellate court does not have jurisdiction to admit additional evidence under O. 41, R. 27, C.P.C., unless the evidence on record is sufficient to enable the court to decide the issue of fact.

JUDGMENT :- This appeal arises out of a suit for dissolution of partnership and for taking accounts of the partnership.

The partnership was run under the style of P.V. Suppa Raja and Co. at Sriviiliputtur for the purpose of procurement of foodgrains as Governments whole-sale agents in Malli, Nathampatti and Watrap firkas of Sriviiliputtur taluk and for importing foodgrains into Srivilliputtur taluk and for importing foodgrains into Srivilliputtur as Governments recognised quota holders and for running relief shop. The partners of the business were the plaintiffs and the first defendant and the partnership agreement is dated 7-5-1947. The suit was resisted by the first defendant mainly on the ground that the partnership in question is prohibited under law and being opposed to public policy and hence the suit for dissolution of partnership and for taking of accounts was not maintainable. This contention, of the first defendant was not accepted by both the lower Courts and a decree for dissolution was passed by the learned District Munsif of Srivilliputtur and was confirmed in appeal by the Subordinate Judge of Ramanathapuram.

The defence being that the partnership was prohibited by the Madras Foodgrains Control Order and was hit by S. 23 of the Indian Contract Act, both the lower Courts were of opinion that prima facie the contention of the defendant was entitled to consideration; but as the licence which was issued admittedly to the first defendant was not produced, and in the absence of the licence the Court could not properly adjudicate on the question of the illegality of the partnership and thus (sic.) rejected the plea of illegality.

2. In the second appeal, where the first defendant is the appellant, he filed an application C.M.P. No. 3055 of 1954, purporting to be under O. 41, R. 27, Civil P.C., for leave to receive the original licence as and by way of additional evidence in second appeal. In the affidavit in support of that petition, the first defendant states that since it was admitted that the licence stood in his name only, the first defendant did not take any steps to produce the licence in the trial Court, that in the appellate Court a licence from the rationing authorities was filed but the same was not received in evidence, that he has been able to search for the original licence and secure the same, that the delay or the failure to produce the licence at an early stage was not due to any want of bona fides, and being a public document its genuineness cannot be impeached, and that as the document is absolutely essential for the determination of the second appeal, it was necessary that the same should be received as and by way of additional evidence here.

This application is opposed by the respondents the other partners, their main contention being that there is no jurisdiction to admit additional evidence in second appeal and that therefore the petition is incompetent. In the lower appellate Court an authorisation issued under the Madras Rationing Order was sought to be adduced as additional evidence, but the lower Court refused to admit the document both on the ground that it is not a licence under the Madras Foodgrains Control Order but a different document, and on the more important ground, namely, that no substantial cause was shown why the document was not produced at the trial and the appellate Court did not consider that the document was necessary to enable the Court to pronounce its judgment. The lower appellate Court was therefore left without any material as the trial Court to consider the correctness of the contention raised on behalf of the defence as to the illegality of the partnership, and following the decision in - Vazhmuni Mudali v. Nathamuni Mudali, AIR 1930 Mad 361 (A), a judgment of Ananthakrishna Aiyar, J., upheld the trial Courts decision and confirmed the decree for dissolution and for accounts.

The facts in that case in so far as the question of the illegality of the partnership is