K. Venkataramiah v. A. Seetharama Reddy & Ors.

/ DAS GuPTA. J.-This is an appeal against a Dt1s Gupta, J. judgment and order of the High Court of Andhra Pradesh confirmiHg an order of the Election Tribu· nal, Hyderabad by which the Tribunal dismissed an election petition filed by the present appellant.

By that petition this appellant sought a declaration that the election of three persons, the present res-pondent, Seetharam Reddy, one Anandam and M. Ataur Rahman be declared void and that he, the petitioner, be declared as duly elected to the Legislative Council of the Andhra Pradesh from Telangana Graduates Constituency. In this appeal we are no longer concerned with the question of validity of elections of Mr. Anandam or Mr. M.

Ataur Rahman but only with that of the respondent Seetharam Reddy.

The appellant challenges the decision of the High Court mainly on the ground that in reaching its conclusion on the vital question of the age of Seetharam Reddy on the da t~ of election the High Court took into consideration evidence which was not legally available for such consideration.

Though a large number of objections. were raised in the petition to contest the validity of Seetharam Reddy's election, C'lly four of them were ultimately pressed before the Election Tribunal, viz., (1) That Seetharam Reddy was disqualified to be chosen to fill a seat in the-Legislative Council under Art. 173 (b) of the Constitution his age !Jeing 1963 below 3U years on the relevant date; (2) That the

election was vitiated by undue influence exercised K. Ven.War...W on the voters by some Miniiters of the State of

y, S11th4r11ms RH'y Andhra Pradesh ; (:J) That the secrecy of the Llas Gupl4, J. ballot was not maintained, aml (4) That the elec-

' tion was void on account of improper deletion of

names of"votcrs in the final list.

All these objections were rejected by the Elec-tion Tribunal wluch accordingly dismissed the peti-tion. On appeal, the High Court confirmed the findings of the Election Tribunal on all these points and dismissed the appeal.

Faced with the position that the correctness of these findings which are all findings of facts is not open to challenge before this Court in this appeal by special leave, the appellant has raised the con-tention that the High Court's decision on the ques-tion of age of Seetharam Reddy was vitiated by the error of law in that additional evidence was admitt· eel and considered by the High Court without complying with the provisions of law.

It appears that a considerable amount of oral and documentary evidence was adduced before the Tribunal on this question of Seetharam Reddy'-' age. While the petitioner tried to establish that Seetharam Reddy was borr. in October 193l, ::,~~tharam Reddy tried to establisi1 i!lat he was born :sometime in 1928. The Tribunal rejected as un-worthy of credit the oral testimony adduced by either side. It also rejected most of the documentary evidence, including R-5 and R-6, R-11 and R-12. R-5 i< a u;rth register; R-6 is an entry therein, R-11 is a certificale purporting to be issued by the Head .... !v!astcr of the l\fuslim E'!gh School, Kurnool, in respect of the age of the respondent Scetharam Reddy while at R-12 is an application said to have been made the time of his admission to this school. The Tribunal's finding was that Seetharam Reddy did 196} not study in the Kurnool Muslim High School. The Tribunal also rejected the documentary evidence K, Venkut«r«n1id •• produced on behalf of the· petitioner seeking to show A. St11har.,.. R<il;i that the respondent Seetharam Reddy was born on DOJ Gu;t•, J, October 10, 1931. Ultimately, however, the Tribu-nal decided the issue as regards the age against the petitioner on the basis of certain documents in con-nection with the proceedings before the Judicial Committee of the Privy Council which showed that the respondent Seetharam Reddy was a major by the year 1356 Fasli. It appears that in that year an appeal was pending in the Judicial Committee of the Privy Council which had arisen out ol a suit regard-ing the adoption of Seetharam Reddy by one T ulsamma, and the party who contested the alleged adoption filed a petition to declare him (Seetharam Reddy) as a major. Exhibit R-10 is that petition.

After notice was servecl a power ( wakalatnama) was filed by Seetharam Reddy as a major in the appeal.

In this wakalatnama (Ex. R-3) Seetharam Reddy's age was given as 19 years. Exhibit R-13 was the i:iotice issued to Seetharam Reddy in those proceed-mgs.

. f~);:.

The Tribunal was of opinion that the gem1i~e:

ncss of these documents, Exhibits R-3, R-10 and R-13, could not be questioned and it was clear that the respondent was treated as a major in the proceed-ings before the Judicial Committee from aud after 1356 Fasli. That showed, according to the Tribunal, that he was npt less than 30 years of age on the date of election or nomination.

The High Court also came to the same conclu-sion on this issue as regards Seetharam Reddy's age.

In coming to this conclusion it has relied not only on the wakalatnama Ex. R-3 mentioned above but also on four other documents, viz., Exs. R-5 and R-o, which the Tribunal rejected as unreliable and 1963 Exs. R-l!J aud R-20 which were not tendered in e1·i-

drnce before the Tribunal but came before the High /,·. l,.tul;,•ft1ra111ia_l1

v • Court as additional evidence. The appellant contends i Stt!h .1r1mr. HtdrJ.1 that the High Court acted without jurisdiction in

Oa.t .up:a, J. admitting additional evidence.

We ;tre clearly of opinion that even if it was found that the High Court erred in taking the addi-tional evidence that would uot be a case of lack of jurisdiction but would be au error in the exercise of jurisdiction. As was pointed out however by thi5 Court in Arfin SinJh v. /(w·tar Sin']li (1). "The discretion to• receive and admit additional evidence is not an arbitrary one, but is a judicial one circums-cribed by the limitations specified in Order XLI, rule ~i, of the Code of Civil Procedure." The ques-tion whether in the present case the High Court exercised the discretion judicially has therefore to be examined by us.

Section 107 of the Code of Civil Procedure empowers the appellate court "to take additional evidence or to require such evidence to be taken,., "subject to such conditions and limitations as may be prescribed.,. Ruic 27 of Or . .fl of the Code of Civil--l'rocedure prescribes the conditions and limita-tions in the matter. The Rule first lays down that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary; in the appellate court. It then pro-ceeds to lay dowu two classes of cases where the appellate court may allow additional evidence to be produced. One class is where the Court appealed from has rcfu~ed to admit evidence which ought to have been admitted. The other class is where the appellate court requires such additional eviden1 c for itself-either to enable it to pronounce judgment or for any other substantial cause. The second class of the rule requires that when additional evidence is allowed to be produced by an appellate court the Court shall record the reason for its admission.

The additional evidence that was produced in 1963 this case had not been tendered in evidence before K . Venkattiram 1ah the Election Tribunal and so this case does not fall v. within the first class meutioned above. Obviously, A. Seetharama Reddy therefore, the High Court allowed the production of Das GtJpta, J. this evidence on its own requirement .

It is contended before us on behalf of the appe-llant that the learned Judges made the order mechani- / cally without applying their minds to the require-ments of Or. 41 r. 27 of the Code of Civil Procedure.

Support for this contention is sought from the fact that the High Court did not record its reasons for the admission of the additional evidence as required by the second clause of the rule. The importance of this provision for recording of the reasons for admission of additional evidence has been empha-sised in· several cases (Vide., Sreemanchunder v.

Gopalchunder (1); ;Jlanmohan Das v. Musamrnat Rarndei (2)).

It is very much to be desired that the courts of appeal should not overlook 'the provisions of cl. (2) of the Ruic and should record their reasons for admitting additional evidence. We arc not prepared, however, to accept the contention of the appellant that the omission to record the reason vitiates the admission 'of the evidence. Clearly, the object of the provision is to keep a clear record of what weighed with the appellate court in allowing the . additional evidence to be produced-whether this

was done on the ground (i) that the court appealed from had refused to admit evidence which ought to have been admitted, or (ii) it allowed it because it required it to enable it to pronounce judgment in the appeal or (iii) it allowed this for any other substantial cause. Where a further appeal lies from the decision of the appellate court \uch recording of the reasons is necessary and useful also to the court of further appeal for deciding whether the •discretion under the

(I) 11866J I! M,I.A 28 (2) (1931) 35 C.W.N. 925.

-- ,._._...-.. --~ ~--...,._....-

42 SUPREME COURT REPORTS [1964] VOL.

1963 rule has been judicially exercised by the court below. 1(. V1nK:1ra.ramiah The omission to record the reason must therefore be

v. treated as a serious defect. E vcn so, we arc unable S£1.h1rama Reidy to pcr.uade ourselves that this provision is manda-l>aJ l.upta, J - tory. for, it rlocs 110~ seem reasonable to think that

the lcgisL1ture intended that even though in the circumstances of a particular case it could be defini tcly ascertained from the record . why the appellate court allowed additional evi-dence and it is clear that the power was properly exercised within the limitation imposed by the first clause of the Ruic all that should be set at naught merely because the provision in the second clause was not complied with. It may be mentioned that as early as 1885 when considering a similar provision in the corresponding section of the Code of 1882, viz., s. 5S!i, the High Court of Calcutta held that this provision for recording reasons is merely directory and not imperative vide Gopal Singh v . .Jhakri Rai ('). We are aware of no case in which the correctness of this view has been doubted. It is worth noticing that when the HJ08 Code was framed and Or. 41 r. '27 took the place of the old section 5ll8, the legislature was content to leave the provision as it was and did not think it necessary to say - anything to make the requirement of recording reasons imperative. It is true that the word "shall" is used in R. 2i (2); but that by itself does not make it mandatory. We are therefore of opinion_ that the omission of the High Court to record reasons for allowing addi-tional evidence docs not vitiate such admission. Nor are we prepared to agree with the learned Counsel that this omission justifies the conclusion that the High Court acted mechanically in the matter, without applying its mind to the require-ments of the Ruic. The record before us shows that the hearing of the appeal before the High Court commenced on July 18, 1!)61 and after the (I) (1885) I.L.R. 12 Cal. 37, appellant's Counsel had concluded his arguments the 1963 respondent's Counsel started addressing the Court. K. Venkataramiah He continued his arguments on the next date, v. i.e., July 19. On the next date, i.e., July, 20 A. Seeiharama Redtfy 19fil an application was made on behalf of Das Gupta, J, the respondent, Seetharam Reddy, praying that two registers of admission and withdrawals of the Govern· ment Muslim High School, Kurnool, be received and admitted as additional evidence in the appeal.

(It may be stated that the petition itself bears the date, July 18, but the supporting affidavit bears the date 20 July). It was stated on affidavit that both these registers had been summoned along with the other documents by the appellant, Venkataramiah, and were actually produced before the Election Tribunal by the Head Master and further that these had been transmitted to the High Court along with the records of the case. It was stated that these documents had "an important bearing" upon the case and were "required to be looked into" to arrive at a just and correct conclusion in regard to Issue No. 1.

On the following date i. e., of July 21, the appellant Venkataramiah put in his counter-affidavit objecting to the respondent's prayer and in para, 6 of this counter affidavit we find the following statement :-

"In the circumstances it is submitted that the provisions of Or. 41 Rule 27 C. P. C., are not complied with. It was not offered as evidence before the Tribunal. Admittedly it was available at the time of tl!e trial and it is not the case of the petitioner that notwith· standing exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decision was pronounced by the Tribunal. It is not in the interest of justice nor it is necessary to enable this Court to pronounce judgment to admit them as additional evidence. On the other 1963 hand, the admission of the registers as evidence

would enable the party to go behimJ his case VtnJararllmia~

v. stated by him in his counter affidavit before SrtrJ1aram:J Rufd_, the Election Tribunal and set up altogether an Das (ju pt a, J. inconsistent case. Hence the said Admission

Registers arc neither relevant nor material." The High Court pa5sed the order for the taking of additional evidence on the same date. How the Hi~h Court considered the matter is best shown by a passage from the judgment pronounced by the Court in the appeal. After pointjng out that the Tribunal "was not prepared to place any reliance on Exhibits R-11 and R-12 and was of the opinion that the 1st respondent did not study in Government Mohammadan. Iligh School, Kurnool, and that Exhibit R-12 was concocted, if it was to be argued that it relates to the present Ist respondent," the judgment proceeds thus :-

"During the course of the argument§ before m, it was noticed that two admission registers relating to the High School for the relevant period were in fact surnmoncd for by the learned Counsel for the petitioner and were produced be-fore the Tribunal. For some reason, which is not clear to us, these registers were not proved and marked as exhibits. These registers were sent to the High Court for hearing of the above appeal and they.were placed before us. \\'e arc told that the Ist respondent also applied that these· registers may be summoned for from the High School. But when he has realised that the peti· tioner himself has summoned for them, it was not necessary for the !st respondent to summon for them again. Whatever it be, these registers were before the Tribunal and arc before us. But as neither party could rely upon them without their being proved and exhibited, the Ist respon-dent filed C.~1.P. No. 7115/IJI under Or. 41 r,2i and section 151 C.P.C. to receive them as

evidence and mark the registers as exhibits. By 1963 our order dated 21-7-1961 we permitted the 1st K. Venkataramiah respondent in the appeal to prove these docu-v. ments before the Election Tribunal. We also A. Seetharama Redd; directed that the appellant is at liberty to D'JS Gupta, J. cross-examine the persons, who might be summo-ned to prove these documents. We also direc-ted the Tridunal to record the evidence adduced in proof of these two registers and submit the same to the High Court for consideration in the above appeal. The Tribunal accordingly re-called R.W.8, the Head Master, Government Muslim High School, Kurnool, and also exa-mined R.W.10, the Head Master of the same school for the years 1936 to 1945. The Regis-ter of Admissions am! Withdrawals relating to the School from 7-7-1919 to 15-1-1938 is marked as exhibit R-19 and the register from 30-6-1926 to 14-2-1949 is marked as Exhibit R-20. The entries in the two registers relating to the 1st respondent are Exhibits R-21 and R-24."

In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that the High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddy's age if the entries in the admission registers of the School were made available. It was vehemently urged by the learned Counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional e"Sidence "to enable it to pronounce judgment". The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to exa-mine the evidence to find out whether we would have . ,........... __.,.... -~·--

46 SUPREME COURT REPORTS [1964] VOL.

1963 required such additional evidence to enable "us" to

pronounce judgment. Apart from this, it is V.·cll to K. Vtnkolarmniah remember that the appellate court has the power to

v.

Sttlharama Reddy allow additional evidence not only if it requires such

evidence "to enable it to pronounce judgment" but DarG11pta, J.

also for "any other substantial cause." There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it i~, and so, it cannot. strictly say that it requires additional evidence "to enable it to prono-unce judgment," it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence "for any other . subslantial cause" under R.2i(l) (b) of the Code. It is easy to sec that such requirement of the Court to enable it to pronounce jugrncnt or for any other StJbstantial cause is not likely to arise ordinarily unless some inherent lacuna or defect become appar- ' cnt on an examination of the cvidcncC: That is why in Par8otim's case('), the Privy Council while discuss-ing whether additional evidence can be admitted obscrvcd:- "lt may be required to enable the Court to pronounce judgment, or for any other substan-tial cause, but in either case it must be the Court that requires it. This is the plain gram-matical reading of the sub-clause. The legiti-mate occasion for the exercise of this dis-cretion 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 appar-ent."

As the Privy Council proceeded to point out:- "lt 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 /§63 the requirement must be the requirement of the K. VenkaMramiah Court upon its 'appreciation of the evidence as v. it stands." A. S.etharam1 R1ddJ D11s G11pta, We are satisfied that in the present case the High Court allowed additional evidence to be admit· ted as it required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of Rule 27(l)(b) of Or. 41 of the Code. The contention that the decision of the High Court on the question of the respondent's age was vitiated by reason of it being based on inadmissible evidence, must therefore fail.

Another difficulty in the appellant's way may also be mentioned. As has been said above, the appell-ant did file before the High Court a petition objecting to the reception of additional evidence. We find it stated however in the High Court's order refusing the . application for a certificate under Art. 133 (l)(c) of the Constitution that no objection that the require-ments of Or. 41 r. 27. C.P.C., were not satisfied, was raised either at the time when the court directed the Tribunal to record the statements or at the time of the hearing of the appeal. This order was passed by the learned Chief Justice and Mr. Justice Chandrasckhara Sastry, who had made the order allowing admission of additional evidence and also heard the appeal. We are bound to hold therefore that though the apppeliant did make an application objecting to the admission of additional evidence he did not press that application.

On the principle laid down in Jagarnath ·Pershad v. Hanuman Persliad (1), that when addi-tional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on, the appellant cannot now be heard to say that the ,, ..... ... ...

48 SUPREME COURT REPORTS [1964] VOL.

1963 additional evidence was taken in this case in bn:ach ;,-. VtnAtUtnami::~ of thr prrn·i•iom of l:m. '

v .

.1. Stclharan:a Redd_) There is nothing therefore that would justify Dus f.,":1pta, J. us in· interfering with the findings of facts on which

the High Court based its decision.

The appeal is accordingly dismissed with costs. Appeal dismissed.

THE COLL.ECTOR OF SOUTH SATARA

1963 & ANR.

Fcbrua')I, IJ.

v.

LAX:\fAN MAHADEV DESHPANDE & ORS. I

Fi

(P. B. GA.JENDRAGADKAR, K. N. WANCIIOO,

1\1. HIDAYA1TLLAH, K. C. DAS GrPTA and ]. c. SHAil, .JJ.) ll"a/~01 /11,ntl.-:-Jlr.:nouption by (/01:ernntf.nl-.\'at~trc uf tit-(', t•·n lllC of land ltr:.ld original1.y aJt u:aLa11. 111n,[ afrcr C1J1n111 ut~1ti•Jli 1 of ,w·"icc-lion./my llcrcdila(// OJ/i•:C·i Ad, l.\'71 ([/I of IS]./), s.<. 4, J', (1) (2), cl. (3), ·?~-/,oss of ll"aian riJ/d8 ;,. la11J- (Jranl of co1np(;n.sation if ~onte-nipfrllCJl-lfrJJnbay ?ara1an 11 a111l !lalkuo1i Walans (Abolition) Act, IU(JO (B'"''· L.\. of 1950), .<s. 3, 4, G, 9 (/) (2) (") (J).

Ou abolition of his u1ata11, the respondent applied lo the c~iitcctor claiining co1npcnsatiou un<lcr s. 9 of the llotnliay Parag,\na antl Kulkarni Watans (1\bolition) :\ct, 19'.:>0, for extinction of his right in che 11.'alan larid, ar.cl of his ''right !o enjoy part of the land revenue." The (;"J[!cctor rejected the application and in appeal the order \Vas afl'1nned by t!1c Revenue 'l'rihunal. 'l'l1t Iligh Con~ t ia a petiti.Hl uuLl.t:r ;\rt. 227 of the C\lllStitution set aside thC' order of the Col!ccto:- and directed hirn to assess and pay C·Hnpensation to the respon-dent under s. 9 (I~ of the Act.

llel<l, that the u·alan property-if any-the hereditary office, and the rights and piivilcges attached thereto, 1ogcther