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Second Appeal No. 369 of 1953 decided on 4th December 1957.
Additional evidence can be admitted in second appeal when required for pronouncing judgment.
It is a well‑settled principle of law that in appropriate cases, even the second Appellate Court can entertain an application for additional evidence.
Under clause (1) (b) of Order XLI, rule 27, C. P. Code, the additional evidence can be admitted only where the Appellate Court, requires any document to be produced to pronounce its judgment.
Where in a compensation suit against the Railway Adminis tration for short delivery of goods the plaintiff in second appeal to the High Court prayed for admission of a copy of the notice served on the defendants under section 77 of the Railways Act and postal receipts as additional evidence under Order XLI, rule 27, C. P. Code as the defendants had contended that the notice served on them was not proper and valid without producing the same in support of their contention and the lower Courts went against the plaintiff on the point that the notice was not a proper one.
Held, under the circumstances the copy of notice and postal receipts should be admitted into evidence on the side of the plaintiff under O. XLI, r. 27, C. P. C. as the Court required those documents for pronouncing the judgment.
Parsotam Thakur v. Lal Mohar Thakur A I R 1931 P C 143 ; Keesowji Issue v. G. I. P. Ry. (1907) 31 Bom. 381 ; Durga Tewary v. Ramrati Kuer A I R 1937 Pat. 584 and In re : Nath Bank Ltd. P L R 4 Dac. 453 fol.
Jamaddar Singh v. Sheikh Naiyab Ali A I R 1941 Cal. 378 ref.
A. S. Chowdhury with B. N. Chowdhury for Appellant.
Syed A. B. Mahmud Hussain, Government Pleader for Respondents.
The plaintiff is the appellant and the appeal arises out of a suit for recovery of money as compensation for short delivery of a consignment of goods which the plaintiff booked from Chittagoing to Dinajpur under Railway Receipt No. 643270. There was a shortage of 38 maunds 11 seers.
The plaintiff served notice under section 77 of the Railways Act and section 80 of the Code of Civil Procedure and then filed the suit against the Railway Administration.
The suit was contested by the Railway Administration. Amongst other contentions they contended that there was no proper‑ and statutory notice under section 77 of the Railways Act.
The learned Munsif, by his judgment dated the 3rd of May, 1951, dismissed the suit holding that there was no valid and proper notice under section 77 of the Railways Act with regard to the claim in suit, and further that the Railway Administra tion was not negligent in the discharge of their duty.
There was an appeal by the plaintiff. The learned Additional Subordinate Judge in Appeal found that Risk Notes A and B did not protect the Railway Administration from the liability in the case, but he found that the notice under section 77 of the Railways Act was invalid, and, as such, he dismissed the plaintiff's claim.
The plaintiff has thereafter preferred this Second Appeal before this Court.
Mr. A. S. Chowdhury, the learned Counsel for the plaintiff appellant, prays that the notice under section 77 of the Railways Act mentioned, in the appellant's petition, filed in Court on the 25th of February 1954, but returned on the 1st of March following and re‑filed during this hearing, as also the acknowledgment receipt and the two postal receipts which are annexures A, B, and C to the said petition, may be, admitted as additional evidence under Order XLI, rule 27 of the Code of Civil Procedure.
The learned Munsif in his judgment has found that although in paragraph 4 of the plaint it is stated that notice under section 77 of the Railways Act was served on the 5th of January 1949, and the 5th of September 1949, there was nothing on the record to show that any such notice was served on the former date. Under section 77, a notice should be served within six months from the date of delivery of the goods for carriage by the Railway.
Mr..Syed A. B. Mahmud Hussain, the learned Government Pleader, appearing for the Railway Administration, has contended that under Order XLI, rule. 27 of the Code of Civil Procedure, there is no scope for admission of those documents into evidence at this stage.
It, is a well‑settled principle of law that even inappropriate cases, the second Appellate Court can also entertain an application for additional evidence. The question is whether this evidence should be admitted at this stage. Order XLI, rule 27 lays down ;
(1) The patties to an appeal shall riot be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if‑
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the Appellate Court requires any document to be pro duced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate; Court, the Court shall record the reason for its admission.
Plaintiffs do not come under Order XLI, rule 27,, clause (1).(a). The only question is whether the plaintiffs come under clause (1) (b). It is also well‑settled that under clause (1) (b) the additional evidence can be admitted only where the Appellate Court requires any document to be produced to pronounce its judgment.
Mr. Chowdhury has relied on Parsotam Thakur v. Lal Mohar Thakur (A I R 1931 P C 143), where, at page 148, Sir George Lowndes delivering the judgment observed :
"Provisions of r. 27, cl. (1) (a), has no application in the present case. Under cl. (1) (b), it is only where the Appellate Court requires' it, (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but, in either case, it must be the Court that requires it. This is the plain grammatical reading of the sub‑clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but
When on examining the evidence as it stands, some inherent lacuna or defect becomes apparent'.
This is laid down in the most positive terms by Lord Robertson in Keesowji Issue v. G. I. P. Ry. ((1907) 31 Bom. 381) He was dealing with the words of section 568 of the Code of 1882, but they are substantially the same as those of O. XLI, r. 27, of the present Code. It may well be that the defect may be pointed out by a party or that a party may move the Court to supply the defect, but the requirement must be the require ment of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure, it is bound by r. 27 (2) to record its reasons for so doing arid under r. 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. Their Lordships regret to find that so far as the record discloses, none of these conditions was complied .with in the present case."
Mr. Chowdhury has also cited the case of Durga Tewary v. Ramrati Kuer (A I R 1937 Pat. 584), where Courtney‑Terrell, C. J., delivering the judgment of the Division Bench, observed at page 585 as follows :‑
"The argument of the learned Advocate and the opinion of the learned Judge of this Court are based upon the word ing of O. XLI, r. 27, Civil P. C. It is suggested that the meaning of para (b) of that Order is that the evidence should not be admitted except on the definite requirement of the Court itself and that if the new and additional evidence is produced by one of the parties, it should be ignored. It is sought to base this argument upon certain passages in a judgment of their Lordships of the Privy Council in 58 I A 254. In my opinion, the judgment referred to lays down no such proposition. It is suggested from the wording of the judgment that unless the Appellate Court itself finds some good reasons for filling up some lacuna, in the evidence, the parties have no right to produce such further evidence. The wording of para. (b) is quite against such a view and I am perfectly certain that their Lordships of the Privy Council intended to lay down no such principle. The Appellate Court may require any docu ment to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, and, as was pointed out by their Lordships of the Privy Council in the case referred to, the word requires' means that is necessary. It may be necessary for the pur pose of enabling the Court to pronounce judgment, that is to say, the Court may find that unless such evidence is produced before it, it has not sufficient material before it to decide the case or there may be some other good and substantial cause and the most common and frequent is that the evidence was not available in the trial Court because the party was unaware of it at the time of the trial and only now has it been brought to the notice of the party. It must be remembered that a party is entitled to obtain a review of a judgment, and one of the grounds upon which it is entitled to obtain a review is that evidence which it could not be expected to have produced at the trial has become available since the trial which is material to the decision of the issue."
My attention has also been drawn to a case of this High Court In re : Nath Bank Ltd. (P L R 4 Dacca 453) where Amir‑ud‑din Ahmad, J., (as His Lordship then was) observed at page 462 that their Lordships allowed additional evidence, which were all documentary, to be admitted for the ends of justice.
The learned Senior Government Pleader, Mr. Hussain, cited before me the case of Jamaddar Singh v. Sheikh Naiyab Ali (A I R 1941 Cal, 378), where Sen, J.,, sitting singly, laid down the law
" When the Court is of opinion that without fresh evidence it finds it difficult to perform its functions, then and then only will the Court admit fresh evidence under r. 27 (1) (b). R. 27 (1) (b) is not intended to assist a party who through negligence or over‑confidence fails to produce sufficient evidence to prove his case in the Court below. If the Court upon the evidence on the record is able to pronounce judgment or perform its functions, it has no jurisdiction to admit further evidence".
This case does not help the respondents in any way. There is a definite case in paragraph 4 of the plaint that the plaintiff preferred his claim for compensation amounting to Rs. 1,148/4/0 for short delivery to the Railway Administration under section 77 of the Railways Act on the 5th of January 1949, and 5th of September 1949, but up till the filing of the plaint no compensa tion was paid In the written statement, the Railway Administra tion did not deny the service of notice under section 77, but their only contention was that the suit was not maintainable for want of proper statutory notice under section 77. Now the original notice is with the Railway Administration and they did not produce the same to show that the notice served on them was not a proper one. Issue No. 3 was framed in the suit to the following effect : "Is the suit bad for want of notice under section 77 of the Indian Railways Act and under section 80 of the C. P. Code ". This issue was not properly framed ; it ought to have been : "Is the suit bad for want of proper notice under section 77 of the Railways Act " It may be that the plaintiff was misled on account of this wrong issue framed by the Court because it was not denied that notice had been served under section 77. But the only question was whether the notice was a proper and statutory one. The trial Court decided the issue against the plaintiff: The lower Appellate Court also found in two lines that as the notice under section 77 had already been found to be invalid, the plaintiff could not succeed in this case. The matter has now come up in Second Appeal. It is really difficult for this Court to perform its functions and decide this issue without the notice and the documents sought to be admitted on behalf of the plaintiff. So, there can be no doubt that the Court requires these documents for pronouncing the judgment, and, in my opinion, these documents should be admitted into evidence on the side of the plaintiff.
The result, therefore, is that this appeal is allowed; the judgments and decrees of the Courts below are set aside and the suit is remanded to the Court of first instance for fresh trial and disposal in accordance with the law after admitting the documents sought to be admitted as additional evidence on the side of the plaintiff and allowing the defendants an opportunity to rebut them, if they so desire.
As the defendants‑respondents are not to blame in this matter, I allow them costs in all the three Courts irrespective of the result of the suit. Future costs will abide the result.
Let a copy of the petition for admission of additional evidence with its original annexures A, B, and C be sent down to the trial Court along with the copies of the judgment and decree of this Court.
Z. A. S.
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