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High Court Of Madhya Pradesh
V. R. Sen and G. P. Bhutt, JJ.
SOBHARAM TIKARAM - Appellant
Versus
RAJKUMAR MUNNALAL - Respondents
First Appeal 115 Of 1950
Decided On : 04/19/1957
CIVIL PROCEDURE CODE, 1908 - ORDER 41, RULE 27 - ADDITIONAL EVIDENCE - ADMISSION - CONDITIONS - DISCRETION OF APPELLATE COURT - JUDICIAL DISCRETION - JUST DISPOSAL OF LIS - DOCUMENTS DECISIVE IN CHARACTER AND ABOVE REPROACH.
Fact of the Case:
Plaintiffs, trustees of Digambar Jain Mahila Ashram, Sagar, filed a suit for possession of a house and gold ornaments belonging to Kanchhedilal, who died in 1945. The suit was based on a deed of trust executed by Rewaram, Kanchhedilal's separated brother, who claimed to have inherited the property. The defendants, Rajkumar and his guardian, claimed that Rajkumar was Kanchhedilal's legitimate son through Manbai, who was married to Munnalal but later divorced him and married Kanchhedilal. The plaintiffs denied these averments and alleged that Rajkumar was begotten by Munnalal.
Finding of the Court:
The trial court dismissed the suit, holding that Rajkumar was the legitimate son of Kanchhedilal and Manbai and, therefore, the rightful heir to the property. The plaintiffs appealed to the High Court, seeking to produce additional evidence in the form of documents related to a maintenance claim filed by Manbai against Munnalal in 1941, which they argued negated the defendants' claims of divorce and remarriage.
Issues: 1. Whether the High Court could admit additional evidence in the appeal under Order 41, Rule 27 of the Code of Civil Procedure, 1908. 2. Whether the documents sought to be produced by the plaintiffs were relevant and decisive in character.
Ratio Decidendi: 1. The High Court held that it had the discretion to admit additional evidence under Order 41, Rule 27(1)(b) of the Code of Civil Procedure, 1908, if it was necessary to enable it to pronounce judgment or for any other substantial cause. 2. The Court found that the documents sought to be produced by the plaintiffs were relevant and decisive in character, as they had the potential to negate the defendants' claims of divorce and remarriage, which were crucial to their case. The Court also noted that the plaintiffs had discovered the existence of these documents only recently and had acted promptly in seeking to produce them.
Final Decision: The High Court allowed the plaintiffs' application to produce additional evidence and remanded the case to the trial court for examining additional witnesses in light of these documents. The trial court was directed to submit the record back to the High Court within 3-1/2 months, after which the appeal would be heard again.
( 2 ) THE appellants are the trustees of Digambar Jain Mahila Ashram, Sagar. The suit was for possession of a house situate in Katra Bazar, Sagar, and gold ornaments worth Rs. 13,282/8/-, which belonged to Kanchhedilal who died on 17th November, 1945. Rewaram, who died during the pendency of the suit, was the separated brother of Kanchhadilal. He transferred the property in dispute to the Digambar Jain Mahila Ashram by a registered deed of trust, dated 12th january, 1946, claiming to have inherited it from his deceased brother. The suit was based on the deed of trust executed by him.
( 3 ) THE suit was originally instituted against Manbai. On her death, during the pendency of the suit, her minor son Rajkumar and his certificated guardian chhotelal were brought on record as her legal representatives. Their defence was that Rajkumar was the legitimate son of Kanchhedialal through Manbai. She was a benekiva and was married to Munnalal in the year 1936. He, however, abandoned her and severed Ms marital ties. She then married Kanchhedilal in October 1940. It was alleged that her divorce and remarriage were valid under the custom of the caste. In this view, Rajkumar claimed the entire property as the next heir of kanchhedilal. The appellants in reply denied these averments and alleged that rajkumar was begotten by Munnalal and not by Kanchhedialal. In this view, they set up a case of lawful inheritance by Rewaram to the exclusion of Rajkumar. The defence, however, prevailed with the lower Court.
( 4 ) THE appellants made an application to this Court on 4th August, 1950 for leave to produce Certain documents, connected with a case under Section 488, Criminal procedure Code. It was urged that the existence of these documents came to be known by the appellants in April 1950, when they made a search of the record of the case and obtained copies of the relevant documents. It appears from these documents that Manbai had laid a claim or maintenance against Munnalal in the year 1941, which was allowed by the Court on 23rd April, 1941. It was urged that these documents negative the contention of the defendants (1) of a divorce of manbai by Munnalal and (2) of a lawful marriage between Manbai and kanchhedilal.
( 5 ) THE question of admission of additional evidence in appeal is governed by Order 41, Rule 27 of the Code of Civil Procedure. This rule was amended by this. Court on 21st March, 1952 by adding a new clause, but that is not relevant as it cannot be applied retrospectively to this case in which the application for admission of additional evidence was made long before its enactment, See Madan Mohan sansthan v. Munnibai, 1956 Nag. LJ 610: (AIR 1957 Nag 15 ). The case has, therefore, to be decided under the original provision.
( 6 ) THE relevant part of Order 41, Rule 27 is Clause (b) of Sub-rule (1), which is reproduced below:
"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-* * * * (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce a judgment, or for any other substantial cause. the appellate Court may allow such evidence or document to be produced, or witness to be examined. "
The scope of this provision was recently the subject of decision by the Supreme court in Arjan Singh v. Kartar Singh, AIR 1951 SC 193, in which the principles laid down by their Lordships of the Privy Council in Kessowji Issur v. GIP Rly. 34 Ind app. 115 and Parsotim v. Lal Mohar, 58 Ind. App. , 254: (AIR 1931 PC 143) have been affirmed. These principles are (i) that the discretion given to the Appeal court to receive and admit additional evidence is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in the rule, (ii
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