In Jaipur
Development Authority V. Smt Kailashwati Devi, AIR 1997 SC 3243, the Apex
Court held:- “The intention of the sub-rule, in our view, is that a party who,
for the reasons mentioned in the sub-clause, was unable to produce the evidence
in the trial court, should be enabled to produce the same in the appellate court.
The sub-rule mentions the conditions which must be complied with by the party
producing the additional evidence, namely, that “notwithstanding the exercise
of due diligence, such evidence was not within his knowledge or could not,
after the exercise of due diligence, be produced by him” in the trial court. It
is not one of the conditions that the party seeking to introduce additional
evidence must have also been one who has led some evidence in the trial court.
Such a view amounts to introducing an additional condition not contemplated by
the sub-rule. No distinction was intended by the sub-rule between a party who
has produced some evidence in the trial court and one who has adduced no evidence
in the trial court. All that is required is that the conditions mentioned in
the body of the sub-rule must be proved to exist. It is not permissible to
restrict clause (aa) for the benefit of only those who have adduced some
evidence in the trial court.”
This blog is only for study purposes and is a collection of notes. The blog may contain some external links as needed which are references used for knowledge of notes. Thanks for visiting.
Wednesday, 13 January 2021
Jaipur Development Authority V. Smt Kailashwati Devi
K. Venkataramiah V. A. Seetarama Reddy
A Five
Judges’ Bench of the Supreme Court in K. Venkataramiah V. A. Seetarama Reddy,
AIR 1963 SC 1526, considering the said provisions, held as under:-
“........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 set 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. It is easy to see that such
requirement of the Court to enable it to pronounce judgment or for any other
substantial cause is not likely to arise ordinarily unless some inherent lacuna
or defect becomes apparent on an examination of the evidence. Thus, it made it
clear that the object of the said provision is to ask a party to adduce
additional evidence.”
The Court
further made it clear that though the provisions provide for recording the
reasons for accepting or rejecting the application under the provisions but it
is not mandatory.
O41 R27. Production of additional evidence in Appellate Court.
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Tuesday, 12 January 2021
Contents, date and signature of judgment: O41 R31
31. Contents, date and
signature of judgment.—The judgment of the Appellate Court
shall be in writing and shall state—
(a) the points for
determination;
(b) the decision thereon;
(c) the reasons for the
decision; and,
(d) where the decree
appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that
it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
Part in Red is original provisions from CPC reproduced here for reference.
Simplified
explanation:
Order XLI Rule 31 deals with the contents, date and signature of the judgment. The issue has been considered time.
How
regular first appeal is to be disposed of by the appellate Court/High Court has
been considered by the apex Court in various decisions. Order XLI of C.P.C.
deals with appeals from original decrees. Among the various rules, Rule 31
mandates that the judgment of the appellate Court shall state:
(a) the
points for determination;
(b) the
decision thereon;
(c)
reasons for the decision; and-
(d) where
the decree appealed from is reversed or varied, the relief to which the appellant
is entitled.
Order XLI, Rule 31 CPC provides guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evident from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance of the said provisions if the appellate court’s judgment is based on the independent assessment of the relevant evidence on all important aspect of the matter and the findings of the appellate court are well founded and quite convincing. It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.
In view of various judgments from various courts in India following points can be noted:
The provisions of Rule 31 of Order 41 C.P.C. should be reasonably construed and should be held to require the various particulars mentioned under Rule 31 to take into consideration.
Under Order 41, Rule 31 of the Code of Civil Procedure, it is mandatory upon the trial court to independently weigh the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. As the first appellate court is the final court of fact, it must not record a mere general expression of concurrence with the trial court’s judgment.
The court of first appeal should not merely endorse the findings of the trial court. But, in order to meet the requirement of Order 41, Rule 31 C.P.C., the Appellate Court must give reasons for its decision independently to that of the trial Court.
In order to meet the requirement of substantial compliance of the provisions of Order 41 Rule 31 C.P.C., the first appellate court must deal all the points agitated before it and it must record reasons in support of its findings, and if the provisions have substantially been complied with, the judgment would not vitiate.
The substantial compliance of the provisions of Order 41 Rule 31 is enough in case, it is made out from a bare reading of the judgment that, while making substantial compliance of the said statutory provisions, justice has not suffered.
The Court should formulate the points for its consideration in terms of Order 41 Rule 31 CPC and proceed with the disposal of the appeal.
A point not necessary for the disposal of appeal may not be decided.
=========
Reference:
http://www.nja.nic.in/16%20CPC.pdf
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Judgments on Order 41 Rule 31 of CPC
Here I am sharing some of judgments on Order 41 Rule 31 of CPC which deals with the contents, date and signature of the judgment. The issue has been considered time.
Judgments:
(a) In Moran
Mar Basselios Catholicos & Anr. V. Most Rev. Mar Poulose Athanasius &
Ors., AIR 1954 SC 526, Apex Court held that it must be evident from the
judgment of the Appellate Court that the Court has properly appreciated the
case, applied its mind and decided on considering the evidence on record.
(b) In Thakur
Sukhpal Singh V. Thakur Kalyan Singh & Ors., AIR 1963 SC 146, the Supreme
Court held that the provisions of Rule 31 of Order 41 C.P.C. should be reasonably
construed and should be held to require the various particulars mentioned under
Rule 31 to take into consideration. The Court placed reliance upon its earlier judgment
in Sangram Singh V. Election Tribunal, Kota, AIR 1955 SC 425, wherein it
had observed that the procedural law has been designed to facilitate justice
and too technical consideration of the Section that leaves no room for
reasonable elasticity of interpretation, should therefore, be guarded against,
as the same may frustrate the cause of justice.
(c) In Girijanandini
Devi V. Bijendra Narain Choudhary, AIR 1967 SC 1124, the Apex Court has
observed that when the Appellate Court agrees with the view of the trial court
in evidence, it did not re-state the effect of evidence or reiterate reasons
given by the trial Court. The expression of general agreement with reasons
given by the court’s decision, which is under appeal, would ordinarily be
suffice.
(d) In Balaji
Mohaprabhu & Anr. V. Narasingha Kar & Ors., AIR 1978 Ori 199, the Orissa
High Court held that it would amount to substantial compliance of the
provisions of Order 41, Rule 23 C.P.C. if the Appellate Court’s judgment is
based on independent assessment of the relevant evidence on all important
aspects of the matter and the findings by the Appellate Court are well-founded
and quite convincing.
(e) In Nihal
Chand Agrawal & Ors. V. Gopal Sahai Bhartia & Ors., AIR 1987 Del 206,
the Delhi High Court held that under Order 41, Rule 31 of the Code of Civil
Procedure, it is mandatory upon the trial court to independently weigh the
evidence of the parties and consider the relevant points which arise for
adjudication and the bearing of the evidence on those points. As the first
appellate court is the final court of fact, it must not record a mere general
expression of concurrence with the trial court’s judgment.
(f) In Samir
Kumar Chatterjee V. Hirendra Nath Ghosh, AIR 1992 Cal 129, the Calcutta
High Court held that the court of first appeal should not merely endorse the findings
of the trial court. But, in order to meet the requirement of Order 41, Rule 31 C.P.C.,
the Appellate Court must give reasons for its decision independently to that of
the trial Court.
(g) In Kuldeep
Singh & Anr. V. Chandra Singh, 1999 AIHC 979, it has been held that in
order to meet the requirement of substantial compliance of the provisions of
Order 41 Rule 31 C.P.C., the first appellate court must deal all the points
agitated before it and it must record reasons in support of its findings, and
if the provisions have substantially been complied with, the judgment would not
vitiate.
(h) In G.
Amalorpavam V. R.C. Diocese of Madurai, (2006) 3 SCC 224, the Supreme Court
held that the substantial compliance of the provisions of Order 41 Rule 31 is enough
in case, it is made out from a bare reading of the judgment that, while making substantial
compliance of the said statutory provisions, justice has not suffered. Where entire
evidence has been considered and discussed in detail, the findings are
supported by reasons even though it has not been done after framing the points
the order is good.
(i) In B.V.
Nagesh & Anr. v. H.V. Sreenivasa Murthy,(2010) 11 SCR 784, while dealing
with the issue, the Supreme Court held as under:
Order XLI Rule 31 Contents, date and signature of judgment.
Reference:
http://www.nja.nic.in/16%20CPC.pdf
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Remand of case by Appellate Court: O41 R23
23. Remand of case by
Appellate Court.—Where the Court from whose decree an appeal
is preferred has disposed of the suit upon a preliminary point and the decree is
reversed in appeal, the Appellate Court may, if it thinks fit, by order remand
the case, and may further direct what issue or issues shall be tried in the
case so remanded, and shall send a copy of its judgment and order to the Court
from whose decree the appeal is preferred, which directions to re-admit the
suit under its original number in the register of civil suits, and proceed to
determine the suit; and the evidence (if any) recorded during the original
trial shall, subject to all just exceptions, be evidence during the trial after
remand.
Judgments:
(a) In Balaji
Mohaprabhu & Anr. V. Narasingha Kar & Ors., AIR 1978 Ori 199, the Orissa
High Court held that it would amount to substantial compliance of the
provisions of Order 41, Rule 23 C.P.C. if the Appellate Court’s judgment is
based on independent assessment of the relevant evidence on all important
aspects of the matter and the findings by the Appellate Court are well-founded
and quite convincing.
Reference:
http://www.nja.nic.in/16%20CPC.pdf
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Judgments on Review Application
In this article I am sharing some of judgments regarding review application. The basic principle of all the laws in human society is nothing but natural justice. The review application governs the principles of natural justice. For example A had filed a suit against B and mentioned all the material facts it which he was knowing while filing the suit and on the basis of these facts he won the case. But after passing judgment in favour of A, B came to know some more material facts about the issue and such new issues are in favour of B, then he can file a review application for sake of justice. These judgments can be used for descriptive note on review application.
Judgments:
(a) In Delhi
Administration V. Gurdeep Singh Uban, AIR 2000 SC 3737, the Apex Court
deprecated the practice of filing review application observing that review, by
no means, is an appeal in disguise and it cannot be entertained even if
application has been filed for clarification, modification or review of the
judgment and order finally passed for the reason that a party cannot be
permitted to circumvent or by-pass the procedure prescribed for hearing a
review application.
(b) Devaraju
Pillai V. Sellayya Pillai, AIR 1987 SC 1160, the Apex Court held that if a
party is aggrieved by a judgment of a Court, the proper remedy for such party
is to file an appeal against that judgment. A remedy by way of an application
for review, is entirely misconceived and if a Court entertained the application
for review then it has totally exceeded its jurisdiction in allowing the review
merely because it takes a different view in construction of the document.
(c) In
Sow. Chandra Kanta & Anr. V. Sheik Habib, AIR 1975 SC 1500, the Apex Court
dismissed a review application observing as under:-
“...........thus,
making it that a review proceeding virtually amounts to a rehearing. May be
........... a review thereof must be subject to the rules of the game and
cannot be lightly entertained. A review of a judgment is a serious subject and
reluctant resort to it is proper only where a glaring omission or patent
mistake or like grave of error is crept in earlier by judicial fallibility.”
(d) In Thadikulangara
Pylee’s son Pathrose V. Ayyazhiveettil Lakshmi Amma’s son Kuttan & Ors.,
AIR 1969 Ker 186, the Kerala High Court considered a review application which
was filed on the ground of subsequent judgment of the Court and dismissed the same
observing as under:-
“If it is
borne in mind that a judicial decision only declares and does not make or
change the law, although it might correct previous erroneous views of the law,
a review on the basis of subsequent binding authority would not be a review of
a decree which, when it was made, was rightly made, on the ground of the
happening of a subsequent event.”
(e) In Mt.
Jamna Kuer V. Lal Bahadur & Ors., AIR 1950 FC 131, the Federal Court made
the following observations:- “Whether the error occurred by reason of the
counsel’s mistake or it crept in by reason of an oversight on the part of the
Court, is not a circumstance which can affect the exercise of jurisdiction of
the Court to review its decision. We have no doubt that the error was apparent
on the face of the record and, in our opinion, the question as to how the error
occurred is not relevant to this enquiry.”
(f) In Hari Shankar V. Anath Nath, 1949 FC 106, Federal Court held as under:-
“......the
error could not be one apparent on the face of record or even analogous to it.
When, however, the Court disposes of a case without adverting to or applying
its mind to a provision of law which gives it jurisdiction to act in a
particular way that may amount to an error analogous to one apparent on the
face of record sufficient to bring the case within the purview of O.47 R.1,
Civil Procedure Code.”
(g) In State of West Bengal & Ors. V. Kamal Sengupta & Anr., (2008) 8 SCC 612, the Apex Court held that review on the ground of discovery of new and important matter or evidence can be taken into consideration if the same is of such a nature that if it had been produced earlier, it would have altered the judgment under review and Court must be satisfied that the party who is adducing the new ground was not having the knowledge of the same even after exercise of due diligence and therefore, it could not be produced before the Court earlier. The error apparent signifies as an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. In case the error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of review.
(h) In S. Nagraj & Ors. V. State of Karnataka & Anr., 1993 Supp (4) SCC 595, the Apex Court considered the scope of review and observed as under:- “Review literally and even judicially means re-examination or reconsideration. Basic philosophy inherent in it is the universal acceptance of human fallibility. Yet in the realm of law, the courts and even the Statutes lean strongly in favour of finality of decision legally and properly made. Exceptions both statutorily and judicially have been carved out to correct accidental mistakes or miscarriage of justice ......... The expression, `for any other sufficient reason’ in the clause has been given an expanded meaning and a decree or order passed under misapprehension of true state of circumstances has been held to be sufficient ground to exercise the power.”
(i) In Chhajju Ram V. Neki & Ors., AIR 1922 PC 112, it was held by the Privy Council that apology must be discovered between two grounds specified therein, namely; (i) discovery of new and important matter or evidence; and (ii) error apparent on the face of record before entertaining the review on any other sufficient ground.
For further reading you can visit:
Section 114. Review.
Order XLVII Rule 1 Application for review of judgment.
Complete note on "Review Application"
Reference:
http://www.nja.nic.in/16%20CPC.pdf
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Review Application
In this article I am sharing a complete simplified explanation regarding "review application". You can use this for writing your descriptive note in your exams.
Review Application:
The basic principle of all the laws in human society is nothing but natural justice. The review application governs the principles of natural justice. For example A had filed a suit against B and mentioned all the material facts it which he was knowing while filing the suit and on the basis of these facts he won the case. But after passing judgment in favour of A, B came to know some more material facts about the issue and such new issues are in favour of B, then he can file a review application for sake of justice.
Order XLVII Rule 1 deals with the power of review. Section 114 read with O.47 R.1 C.P.C. prescribes the limitations for entertaining a review petition. The same are: that the party filing the application for review has discovered a new and important matter or evidence after exercise of due diligence which was not within its knowledge or could not be produced by it at the time when the decree was passed; or order made or on account of some mistake or error apparent on the face of the record; or ‘for any other sufficient reason.’
The
aforesaid limitations are prescribed in a crystal clear language and before a party
submits that it had discovered a new and important matter or evidence which could
not be produced at the earlier stage, the condition precedent for entertaining
the review would be to record the finding as to whether at the initial stage,
the party has acted with due diligence. “Due” means just and proper in view of
the facts and circumstances of the case.
Some mistake or error, if made ground for review, it must be apparent on the face of the record and if a party files an application on the ground of ‘some other sufficient reason’, it has to satisfy that the said sufficient reason is analogous to the other conditions mentioned in the said rule i.e. discovery of new and important matter or evidence which it could not discover with due diligence or it was not within his knowledge, and thus, could not produce at the initial stage. Apparent error on the face of record has been explained to include failure to apply the law of limitation to the facts found by the Court or failure to consider a particular provision of a Statute or a part thereof or a statutory provision has been applied though it was not in operation. Review is permissible if there is an error of procedure apparent on the face of the record, e.g., the judgment is delivered without notice to the parties, or judgment does not effectively deal with or determine any important issue in the case though argued by the parties. There may be merely a smoke-line demarcating an error simplicitor from the error apparent on the face of record. But, there cannot be a ground for entertaining the review in the former case. “Sufficient reason” may include disposal of a case without proper notice to the party aggrieved. Thus, if a person comes and satisfies the Court that the matter has been heard without serving a notice upon him, review is maintainable for the “sufficient reason” though there may be no error apparent on the face of record. The expression ‘any other sufficient reason’ contained in O.47 R.1 of the Code means “sufficient reason” which is analogous to those specified immediately to it in the provision of O. 47 R. 1 of the Code.
The apology
must be discovered between two grounds specified therein, namely; (i) discovery
of new and important matter or evidence; and (ii) error apparent on the face of
record before entertaining the review on any other sufficient ground.
Review
literally and even judicially means re-examination or reconsideration. Basic
philosophy inherent in it is the universal acceptance of human fallibility. Yet
in the realm of law, the courts and even the Statutes lean strongly in favour
of finality of decision legally and properly made. Exceptions both statutorily
and judicially have been carved out to correct accidental mistakes or
miscarriage of justice
Review on
the ground of discovery of new and important matter or evidence can be taken
into consideration if the same is of such a nature that if it had been produced
earlier, it would have altered the judgment under review and Court must be satisfied
that the party who is adducing the new ground was not having the knowledge of
the same even after exercise of due diligence and therefore, it could not be
produced before the Court earlier. The error apparent signifies as an error
which is evident per se from the record of the case and does not require
detailed examination, scrutiny and elucidation either of the facts or the legal
position. In case the error is not self-evident and detection thereof requires
long debate and process of reasoning, it cannot be treated as an error apparent
on the face of the record for the purpose of review.
The
purpose of review is rectification of an order which stems from the fundamental
principle that the justice is above all and it is exercised only to correct the
error which has occurred by some accident, without any blame.
In many
cases the Apex Court held that review does not lie on the ground that applicant
could not highlight all the aspects of the case or could have argued more
forcefully or cited binding precedents to get a favourable judgment.
For further reading you can visit:
Section 114. Review.
Order XLVII Rule 1 Application for review of judgment.
Judgments on Review Application
Reference:
http://www.nja.nic.in/16%20CPC.pdf
Please
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