AI Drafter 
TaxTMI 
TaxTMI 
1953 (11) TMI 27
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....of one-third share therein. Defendants 1 and 2 admitted the claim of the plaintiff. The other defendants contested the suit mainly on the ground that the properties did not devolve on Lakshmamma as the widow of Rami Reddi but that the brother of Rami Reddi who took the properties by survivorship had settled them on her for her lifetime in lieu of her claim for maintenance. They also contended that the alienations were supported by necessity and binding on the reversioners. Defendants 7 to 12 raised a further plea that Rami Reddi had no daughter of the name of Mahalakshmamma and that the plaintiff and the first defendant were not reversioners to his estate. The District Munsif who tried the suit held that the plaintiff has established the relationship set out in the plaint, that the suit properties belonged to Rami Reddi and that the alienations were not binding on the reversioners. He accordingly granted a decree for partition and delivery of one-third share of the suit properties with mesne profits in favour of the plaintiff. There was an appeal by defendants 8 to 12, 15 and 20 to 32 in respect of items 2, 3, 2/3rd share of item 4 and item 8, A. S. No. 436 of 1943 on the file o....
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....r before the time when the decree under appeal was passed, (c) the Appellate Court requires any documents to be produced 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 examined. (2) Wherever additional evidence is allowed to be produced by an appellate court, the court shall record the reason for its admission." 4. The complaint of Mr. B. V. Ramanarasu, the learned advocate for the appellants, is that the Subordinate Judge gave no reasons for admitting additional evidence in appeal, that the requirements of Order 41, Rule 27(2), C. P. C. have not been complied with and that in consequence Ex. D. 9 series ought to be excluded from consideration. It is not in dispute that no order was passed recording reasons for admitting Ex. D. 9 series in evidence and that there has thus been a contravention of Order 41, Rule 27(2). We are not disposed to hold that this is a mere formal defect. When a suit has been fully tried and judgment given, it is a serious matter to permit the trial to be reopened in the court of appeal by admitting fres....
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....ar J. observed as follows: "The discretion to receive and admit additional evidence is not an arbitrary one, but a judicial one circumscribed by the limitations specified in Order 41, Rule 27, C. P. C. If the additional evidence was allowed to be adduced contrary to the principles governing reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence, so brought on the record, will have to be ignored and the case decided as if it was non-existent." If additional evidence can be taken into consideration only if it has been properly admitted how is it to be determined whether it has been properly admitted unless reasons therefore are given? It is for this reason that Order 41, Rule 27(2) enacts that the court should record reasons for admitting additional evidence. It is, therefore, a matter of substance that the court should comply with the requirements of that provision. 6. But then the question is whether evidence admitted without according reasons for such admission under Order 41, Rule 27(2) becomes inadmissible for that reason? There is considerable authority for the position that Rule 27(2) is directory and not i....
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.... 41, Rule 27(1)(c). Though the matter is not clear, we are not disposed to differ from the learned Judge in his reading of the judgment. In this view Ex. D. 9 series must be held to have been properly admitted in evidence and the finding of the lower court based thereon is not open to attack being one of fact. 8. The next point for determination is whether the dismissal of the suit by the lower appellate court not only against those defendants who had preferred appeals but even as against those who had not, was proper and legal. That depends upon whether that could be justified under Order 41, Rule 33, C. P. C. In -- 'Subramania Chettiar v. Sinnammal', AIR 1930 Mad 801 (G) a Full Bench of this court had occasion to consider the scope of Order 41, Rule 33. There, the contention that was advanced was that even though the language of that rule was wide, it must be read subject to Order 41, Rule 22 and other statutes such as Limitation Act and Court-fees Act; and that, so read it conferred no Jurisdiction on the court to pass a decree in favour of a party who had preferred neither an appeal nor a cross-appeal. This court rejected that contention and held that having regard t....
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....his connection that the question of judicial discretion comes in. There may no doubt be cases where no excuse or justification could be found for a party not having preferred an appeal or a memorandum of objections, in which cases justice may not require the exercise of powers under Order 41, Rule 33, and the appellate court will be well advised in not exercising such powers." As the Subordinate Judge has failed to consider the question whether on the facts it was a case for exercise of the powers under Order 41, Rule 33 it becomes necessary for this court to determine whether the dismissal of the entire suit by him could be justified under that rule. 10. Though Order 41, Rule 33 confers wide and unlimited jurisdiction on courts to pass a decree in favour of a party who has not preferred any appeal, there are, however, certain well defined principles in accordance with which that jurisdiction should be exercised. Normally a party who is aggrieved by a decree should, if he seeks to escape from its operation, appeal against it within the time allowed after complying with the requirements of law. Where he fails to do so, no relief should ordinarily be given to nun under Order 41....
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....em in good condition. This principle has been followed in a number of decisions in the Indian Courts. A third class of cases in which this rule has been applied is when the relief prayed for is single land indivisible but is claimed against a number of defendants. In such cases, if the suit is decreed and there is an appeal only by some of the defendants and if the relief is granted only to the appellants there is the possibility that there might come into operation at the same time and with reference to the same subject-matter two decrees which are inconsistent and contradictory. -- "Thirumalachariar v. Athimoola Karayalayar', AIR 1933 Mad 529 (O), relied on by the respondent is a case of this kind. There, the suit was to enforce an agreement to convey lands stated to have been executed by one Nambi Kone. The defendants to the suit were his widow, and daughter, defendants 1, and 7 and his reversioners defendants 2 to 6. The suit was contested by the latter on the ground that the agreement was not genuine. The Subordinate Judge upheld this contention and dismissed the suit as against them but as against defendants 1 and 7 there was an ex parte decree. On appeal by the pla....
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....n has to be determined whether the exercise by the subordinate Judge of the power under Order 41, Rule 33 is in the instant case proper. 11. Now what are the facts? A reversioner files a suit to recover possession of his share of eight items of properties. They are held by different defendants under different alienations, some of which might be valid and others not. There is no community of interest between them. Indeed the plaintiff could have filed a separate suit in respect of each item and impleaded as defendants therein only the alienee interested in that item In that event, if all the suits were decreed but an appeal were to be preferred against the decree in only one of them and that appeal allowed that would not operate as reversal of the decrees in the other suits; nor would there be any power in the court to set aside those decrees under Order 41, Rule 33 Should it then make a difference when the plaintiff has, for convenience, combined several suite into one and if so, on what principle? Such a case does not fall within any of the recognised categories in which courts have interfered under Order 41, Rule 33 . It is not necessary for granting relief to the alienee-a....
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....am and Thiruvenkatachariar JJ. held that inasmuch as there was no need to dismiss the suit in respect of items 1, 2, 3, and 6 for the purpose of doing justice to the appellants who were interested only in item No. 4, p. 41, Rule 33 was inapplicable and that further as in substance there were really two distinct decrees there was neither hardship nor real anomaly by reason of the inconsistency in the ground on which they rested. This decision completely supports the contention of the appellant and we are inclined to follow it as on the facts it is on all fours with the present case. 13. Considering the question on principle, when a decree is in substance a combination of several decrees against several defendants, there is no reason why an appeal presented by one of the defendants in respect of his interest should enure for the benefit of the other defendants with reference to their interests. This principle has been applied in quite a number of authorities. Vide -- 'Gyan Singh v. Ata Husain', AIR1921All56 (U); 'Mahendranath v. Khetra Mohan Bera' AIR1928Cal593 , 'Daroga Rai v. Basdeo Mahto', AIR1937Pat40 (W), and -- 'Mohan Bikram Shah v. Deo Narain&....