The State of Madras vs Joseph Stanley Mayers and others

Anantanarayanan, C.J.—In these related revision proceedings the same question is involved, and it appears to be desirable that I should not

travel beyond the ambit of the short point that now requires decision. The learned Judge of the City Civil Court has held, during the course of his

order, that justice, equity and good conscience make it imperative that he should be able to exercise the power, in an appeal to him under S. 6 (4)

(a) of the Madras Slum Improvement (Acquisition of land) Act 1954 (Madras Act XI of 1954), to take additional oral and documentary evidence.

The short question is whether, when the statute itself (Madras Act XI of 1954) is silent as to the existence of any such power, there is any inherent

power in the Court to record such additional evidence.

This statute has been noticed at same length by Srinivasan, J. in Appavoo Mudaliar v. Special Dy. Collector, Madras (1964) 2 M.L.J. 487. But

the point for which the learned Judge felt implied to analyse the scheme and provisions of the statute, was one relating to Court fee and it had no

reference, direct or indirect, to the powers of the appellate Court, in dealing with an appeal under S. 6(4)(a) of the Act. But at page 491 of the

report, the learned Judge (Srinivasan, J.) has made a significant observation that what S. 6(3) of the Slum Improvement Act provided is for the

decision of dispute relating to the net average annual income. For, S. 6(4)(a) explicitly states that ""any person who does not agree (sic) amount of

the net average annual income.....and claims a sum in excess of the amount, may prefer an appeal to the Court."" The learned Judge therefore

observed :

I have already pointed out that this Act contains no provision for an appeal or a reference regarding a dispose about the quantum of compensation

as such.

But this point is really now academic, for it is not in dispute that a schedule to this Act Act provides the mode in which the net average annual

income has to be computed, and, admittedly, it is with regard it this foundation for compensation that the right of appeal is statutorily embodied in

S. 6 (4) (a). Under S. 6 (4) (b) there is a right of second appeal to the High Court ""on any question of law"".

By definition, ""Court"" for the purposes of Madras Act XI of 1954 is the Madras City Civil Court......indisputably, as the learned Additional

Government Pleader concedes that Court is governed by a special enactment concerning its composition end the scope of its functions and by the

Civil Procedure Code. Where it functions as a Court of appeal, it would be governed by the rules of O. 41, C. P. C. O. 41, R. 27, C. P. C., (sic)

the specific principles upon which an appellate Court can permit additional evidence to be adduced before it. It will be noticed that this provision of

the processual law is really in two parts. Under O. 41, R. 27 (1) (a), the admission of additional evidence could relate to evidence which ought to

have been admitted by the trial Court itself, and which was not admitted. Or similarly under O. 27 (1) (b), permission could be granted where the

concerned party satisfies the Court, of the justification for not adducing such evidence at an earlier stage. These clauses relate to the right of the

parties, subject to the satisfaction of the Court O. 41; R. 27(1) (c) C. P. C., is the inherent power of the Court itself, where it is satisfied that

additional evidence is essential, in order to enable the Court to do justice, in the matter of me cause before the Court.

In the present case, the learned Judge appears to feel that the adducing of such additional evidence was essential in the interests of justice, in

these proceedings. It will be noticed that, under S. 6(4)(a) of the Madras Act XI of 1954, the Court of appeal is bound to give a finding

concerning the excess amount claimed by the private party with regard to this net average annual income. How is the Court to give a finding, if it

discovers that some essential basis of evidence, the inclusion of which alone would enable the Court to adjudicate; has not been placed before the

Court, though available? Has the Court no power to call for this evidence in order to do justice? The learned Judge has dealt with these points and

given in my view, the right answer that the Court has the power. Only he has placid it on the broad considerations of equity, jurisprudence whereas

the power can be simply derived from the structure and functions, and the processual law applicable to the City Civil Court itself.

The learned Additional Government Pleader has drown my attention to certain observations of the Judicial Committee in Ponnamma v. Arumuga

1905 A.C. 383 (P.C.). These observations are of some interest, but they are really not pertinent to the present context. Undoubtedly, with regard

to the ambit of an appeal strictly so called, the question is as stated by Jessel MR in Quilter v. Mapleson (1882) 9 Q.B.D. 672 whether the

judgment given is one which ought to have been given at the original hearing"". In other words, the question is not whether, upon the inclusion of

other essential material which was not before the trial Court, some other conclusion could not have been arrived at. But, at the end of this very

passage, the Judicial Committee took care to observe that, where they are of the view that the Court below has not sufficient materials for its

judgment, or improperly omitted to receive, or require further evidence, the matter may be remanded for further hearing and disposal.

Without proceeding into any broader aspect, therefore, I am of the view that the Court which means, by definition, the City Civil Court,

disposing of a statutory appeal under S. 6 (4) (a) of Madras Act XI of 1954, can exercise the powers with which the Court has been invested

under O. 41, R. 27, C.P.C., whether the appeal relates to a special enactment or is an appeal in ordinary civil appellate jurisdiction. Indisputably,

the party can only make an application in this respect. It is for the Court to be satisfied that the adducing of further evidence is essential in the

interests of justice, in order to achieve the proper adjudication of the cause. Naturally enough, it follows that if the Court is going to permit such

evidence, or call for such evidence, it should give opportunity to both sides to argue upon the additional evidence, and to rebut the force of any

presumptions which are sought to be drawn on the evidence, during the course of such arguments. With these observations, the civil revision

petitions are dismissed. No costs.