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PETITIONER: K.VENKATARAMIAH

       Vs.

RESPONDENT: A.   SEETHARAMA REDDY & ORS.

DATE OF JUDGMENT: 12/02/1963

BENCH: GUPTA, K.C. DAS BENCH: GUPTA, K.C. DAS GAJENDRAGADKAR, P.B. WANCHOO, K.N. HIDAYATULLAH, M. SHAH, J.C.

CITATION:  1963 AIR 1526            1964 SCR  (2)  35

ACT: Election Petition--Age of Candidate on date of nomination or election-Admission  of additional evidence in  High  Court-- When can be allowed--Additional evidence taken with  consent of   parties--Effect--Constitution   of  India,   Art.   173 (b)--Code  of Civil Procedure, 1908 (Act 5 of 1908), O.  41, R. 27.

HEADNOTE: The  appellant  challenged  the  validity  of  election   of respondent on the grounds that he was below 30 years on  the relevant  date,  that  his election was  vitiated  by  undue influence  exercised on the voters by some Ministers of  the State,  that  the secrecy of ballot was not  maintained  and that  the election was void on account of improper  deletion of names of voters from the final list.  All the  objections were  rejected by the Election Tribunal which dismissed  the election petition.  On appeal, the High Court confirmed  the findings of the Election Tribunal and dismissed the  appeal. The appellant came to this Court by special leave. The  appellant  challenged the decision of  the  High  Court mainly on the ground that in reaching its conclusion on  the question  of age of the respondent on the date of  election, the  High Court took into consideration evidence  which  was not  legally  available  for  consideration  and  that   the additional evidence was admitted without complying with  the provisions of law. Held, that the High Court allowed additional evidence to  be admitted as it required that evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of R. 2 7 (1) (b) of 0. 41 of the Code of  Civil Procedure.   It could not be said that the High  Court  made the  order  for  admission of  additional  evidence  without applying its mind. The  appellate court has power to allow additional  evidence not only if it requires such evidence "to enable it to 36 pronounce  judgment"  but also for  "any  other  substantial cause." There may be cases where even though the court finds

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that  it is able to pronounce judgment on the state  of  the record  as  it  is and so it cannot  strictly  say  that  it requires  additional  evidence "to enable  it  to  pronounce 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 substantial cause." Held,  also, that the omission of the High Court  to  record the  reasons  for  allowing  additional  evidence  does  not vitiate  such  admission.  The provision  is  not  mandatory although  where a further appeal lies from the  decision  of the  appellate  Court, the recording of the reasons  may  be necessary  and  useful to the Court of  further  appeal  for deciding   whether  the  discretion  had   been   judicially exercised  by  the Court below or not and  the  omission  to record the reasons must be treated as a serious defect. When  additional 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.   As  the appellant   did  not  press  his  application  against   the admission  of  additional evidence, the  objection  must  be over-ruled. Arjan   Singh  v.  Kartar  Singh.  [1951)  S.  C.  R.   258, Sreemanchunder  v.  Gopalchunder,  (1866) 11  M.  1.  A.  28 Manmohan Dag v. Musammat Ramdie (1931) 35 C. W. N. 925 Gopal Singh v. Jhakri Rai, (1885) 1. L. R. 12 Cal. 37, Parsotim v. Lal  Mohar, (1931) L. R. 58 I.A. 254 and Jagamath Prasad  v. Hanuman Pershad (1909) L. R. 36 I.A.    221, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 676 of 1962. Appeal  by special leave from the judgment and decree  dated September  5,  1961,  of the Andhra Pradesh  High  Court  at Hyderabad in Special Appeal No. 3 of 1961. K.   Bhimsankaram, A. Ranganadham Chetty,A.  Vadavalli,   E. Udayarathnam and A. V. Rangam, for the appellant.  37 A.  V. Viswanatha Sastri and P. Thiagarajan, for  respondent No. 1. K.   R. Chaudhri, V. C. Prashar and Amarsingh Chaturvedi for respondent No. 2. 1963.  February 12.  The judgment of the Court was delivered by DAS  GUPTA.   J.-This is an appeal against  a  judgment  and order  of  the High Court of Andhra Pradesh  confirming.  an order  of  the  Election Tribunal, 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 respondent, 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 date  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

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petition  to  contest  the  validity  of  Seetharam  Reddy’s election,  only 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 being 38 below  30 years on the relevant date; (2) That the  election was  vitiated by undue influence exercised on the voters  by some Ministers of the State of Andhra Pradesh ; (3) That the secrecy  of the ballot was not maintained, and (4) That  the election  was void on account of improper deletion of  names of voters in the final list. All these objections were rejected by the Election  Tribunal which  accordingly dismissed the petition.  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  contention  that  the  High Court’s  decision on the question of age of Seetharam  Reddy was vitiated by the error of law in that additional evidence was  admitted  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’s age.  While  the  petitioner tried to establish that Seetharam Reddy was born. in October 1931,  Seetharam Reddy tried to establish that he  was  born sometime  in  1928.  The Tribunal rejected  as  unworthy  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 is a birth register;  R-6  is  an entry therein, R-11 is a certificate purporting to be issued by  the Head Master of the Muslim High School,  Kurnool,  in respect  of the age of the respondent Seetharam Reddy  while R-12 is an application said to have been made at the time of his admission to this school.  The  39 Tribunal’s finding was that Seetharam Reddy did not study in the Kurnool Muslim High School.  The Tribunal also  rejected the   documentary  evidence  produced  on  behalf   of   the petitioner  seeking  to show that the  respondent  Seetharam Reddy  was born on October 10, 1931.   Ultimately,  however, the  Tribunal 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 of  a suit regarding the adoption of Seetharam Reddy by  one Tuisamma,  and the party who contested the alleged  adoption filed  a  petition  to declare him (Seetbaram  Reddy)  as  a major.   Exhibit  R-10 is that petition.  After  notice  was served 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 notice issued to Seetharam Reddy in those  proceed- ings. The  Tribunal was of opinion that the genuineness  of  these documents,  Exhibits  R-3,  R-10 and R-13, could  not  be  q questioned and it was clear that the respondent was  treated as a major in the proceedings before the judicial  Committee from  and after 1356 Fasli.  That showed, according  to  the

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Tribunal,  that he was not less than 30 years of age on  the date of election or nomination. The  High  Court also came to the same  conclusion  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-6, which the Tribunal rejected as unreliable and 40 Exs.   R-19  and R-20 which were not  tendered  in  evidence before  the  Tribunal  but came before  the  High  Court  as additional  evidence.  The appellant contends that the  High Court  acted  without jurisdiction in  admitting  additional evidence. We are clearly of opinion that even if it was found that the High  Court  erred in taking the  additional  evidence  that would not be a case of lack of jurisdiction but would be  an error  in the exercise of jurisdiction.  As was pointed  out however  by this Court in Arjan Singh v. Kartar  Singh  (1). "The discretion to receive and admit additional evidence  is not an arbitrary one, but is a judicial one circumscribed by the limitations specified in Order XLI, rule 27, of the Code of  Civil  procedure." The question 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." Rule 27 of Or. 41 of  the Code  of  Civil  Procedure  prescribes  the  conditions  and limitations 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 proceeds to lay down two  classes of  cases  where the appellate court  may  allow  additional evidence  to  be  produced.  One class is  where  the  Court appealed  from has refused to admit evidence which ought  to have been admitted.  The other class is where the  appellate court requires such additional evidence 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. (1)  [1951] S.C.R, 258.  41 The  additional evidence that was produced in this case  had not  been tendered in evidence before the Election  Tribunal and  so  this  case does not fall  within  the  first  class mentioned  above.   Obviously,  therefore,  the  High  Court allowed  the.  production  of  this  evidence  on  its   own requirement. It  is contended before us on behalf of the  appellant  that the  learned  judges  made the  order  mechanically  without applying their minds to the requirements 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 emphasized in several  cases (Vide.,  Sreemanchunder v. Gopalchunder (1) Manmohan Das  v. Mutsammat Ramdei (2)) . It  is  very much to be desired that the  courts  of  appeal should  not overlook the provisions of cl. (2) of  the  Rule

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and  should  record their reasons for  admitting  additional evidence.   We  are  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 such recording  of  the reasons is necessary and useful also to the court of further appeal for deciding whether the discretion under the (1) [1866] 11 M.1.A. 28   (2) (1931) 35 C.W.N, 925. 42 rule has been judicially exercised by the court below.   The omission to record the reason must therefore be treated as a serious  defect.   Even  so,  we  are  unable  to   persuade ourselves  that this provision is mandatory.  For,  it  does not  seem reasonable to think that the legislature  intended that  even though in the circumstances of a particular  case it  could be definitely ascertained from the record why  the appellate court allowed additional evidence and it is  clear that the power was properly exercised within the  limitation imposed  by the first clause of the Rule 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. 586, the High  Court  of  Calcutta  held  that  this  provision   for recording  reasons  is merely directory and  not  imperative vide Gopal Singh v. Jhakri Rai(1).  We are aware of no  case in which the correctness of this view has been doubted.   It is worth noticing that when the 1908 Code was framed and Or. 41  r.  27  took  the. place of the  old  section  568,  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. 27 (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 additional evidence does  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 requirements of the Rule.  The record before us shows that  the  hearing  of  the appeal  before  the  High  Court commenced on July 18, 1961 and after the (1)  (1885) I.L.R. 12 Cal. 37.  43 appellant’s   Counsel  had  concluded  his   arguments   the respondent’s  Counsel  started  addressing  the  Court.   He continued his arguments on the next date, i.e., July 19.  On the next date, i.e., July 20,  1961 an application was  made on  behalf of the respondent, Seetharam Reddy, praying  that two registers of admission and withdrawals of the Government 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,

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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 the trial and it is not the case of the   petitioner  that  notwithstanding  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 ofjustice nor it is  necessary to enable this Court to pronounce judgment  to admit them as additional evidence.  On the other 44 hand,  the  admission  of the registers  as  evidence  would enable the party to go behind his case stated by him in  his counter  affidavit before the Election Tribunal and  set  up altogether  an inconsistent case.  Hence the said  Admission Registers are neither relevant nor material." The High Court passed the order for the taking of additional evidence  on the same date.  How the High  Court  considered the  matter  is best shown by a passage  from  the  judgment pronounced  by the Court in the appeal.  After pointing  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  High School, Kurnool, and that Exhibit R-12 was concocted, if  it was  to  be  argued  that it  relates  to  the  present  1st respondent," the judgment proceeds thus : - "During  the  course  of the arguments  before  us,  it  was noticed  that two admission registers relating to  the  High School for the relevant period were in fact summoned 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.   We  are told  that  the  1st  respondent  also  applied  that  these registers  may  be summoned for from the High  School.   But when  he  has  realised  that  the  petitioner  himself  has summoned  for  them,  it  was  not  necessary  for  the  1st respondent to summon for them again.  Whatever it be,  these registers  were before the Tribunal and are before us.   But as  neither party could rely upon them without  their  being proved  and exhibited, the 1st respondent filed  C.M.P.  No. 7115/61 under Or. 41 r.27 and section 151 C.P.C. to  receive them as  45 evidence and mark the registers, as exhibits.  By our  order dated  21-7-1961  we  permitted the 1st  respondent  in  the appeal   to  prove  these  documents  before  the   Election Tribunal.  We also directed that the appellant is at liberty to cross-examine the persons, who might be summoned to prove these  documents.  We also directed the Tribunal  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,

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the Head Master, Government Muslim High School, Kurnool, and also examined R.W.10, the Head Master of the same school for the  years  1936 to 1945.  The Register  of  Admissions  and 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 evidence "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 examine the evidence to find out whether we would have 46 required  such  additional  evidence  to  enable  ""us"   to pronounce judgment.  Apart from this, it is well to remember that  the appellate court has the power to allow  additional evidence not only if it requires such evidence "to enable it to pronounce judgment" but 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 is, and so, it cannot strictly say that  it requires  additional  evidence "’to enable it  to  pronounce 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 substantial cause" under R-27(1) (b) of the Code. It  is  easy to see that such requirement of the  ’Court  to enable   it  to  pronounce  judgement  or  for   any   other substantial  cause is not likely to arise ordinarily  unless some  inherent  lacuna  or  defect  become  apparent  on  an examination of the evidence.  That is why in Parsotim’s case (1),  the Privy Council while discussing whether  additional evidence can be admitted observed:- "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." As the Privy Council proceeded to point out:- "It  may  well be that the defect may be pointed  out  by  a party, or that a party, may (1)  (1931) L.R. 58 I.A. 254.  47 move  the  Court to supply the defect, but  the  requirement must  be the requirement of the Court upon its  appreciation of the evidence as it stands." We  are  satisfied that in the present case the  High  Court

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allowed  additional evidence to be admitted as  it  required such  evidence either to enable it to pronounce judgment  or for  any other substantial cause within the meaning of  Rule 27(1)(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 appellant 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 (1)(c) of the Constitution  that no objection that the requirements 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 Chandrasekhara  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 appellant 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.  Hanumam Pershad  (1), that when additional 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 (1)  (1909) L.R. 36 I.A. 221. 48 additional evidence was taken in this case in breach of  the provisions of law. There  is  nothing  therefore  that  would  justify  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.