Report No. 54
Order 41, rule 27
41.91. Order 41, rule 27 relates to taking of additional evidence in the Appellate Court. In the earlier Report an amendment1 had been recommended in this rule in implementation of the recommendation made in the 14th Report.2 The object was to provide that additional evidence may be allowed by the appellate court, if the evidence could not be produced in the lower court because it was not within the knowledge, etc., of the party seeking to produce it now.
1. 27th Report, note on Order 41, rule 27.
2. 14th Report, Vol. I.
41.92. We have examined the matter, and we entirely agree with the recommendation.
Order 41, rule 31-Contents of Appellate Judgment
41.93. At present, under Order 41, rule 31, the judgment of a Court of first appeal or second appeal has to contain the points for determination, the decision thereon, and the reasons for the decision, and where the decree under appeal is reversed or varied, the relief to which the appellant is entitled. It was suggested to us that while these requirements are obviously necessary in the case of a Court of first instance, their literal application to Courts of appeal may not be necessary in every case. If the court of appeal has nothing new to say on any of the points decided by the Court of first instance, repetition could be usefully avoided. In other words, the judgment of a Court of appeal could be in continuation to that of the trial court, since it is to be in support of the same. We considered a suggestion was to make provisions on the following lines:
(a) When the arguments advanced before the Court of appeal are the same as were noticed by the Court below whose reasons for accepting or rejecting them appear to the Court of appeal to be sound, the judgment of the Court of appeal need only say that much, and may merely add that no fresh argument has been urged. In such cases, the appeal would be dismissed without any discussion on the points involved.
(b) Where the same arguments as were urged before the trial Court are repeated before the Court of appeal, but the Court of appeal comes to a different conclusion on a particular point or points, the judgment of the Court of appeal could start straightway with a discussion of those particular point or points, followed by its decision thereon and the effect of that decision.
Where, before the Court of appeal, a new argument is advanced in support of, or against, a finding of the court below, or an altogether new point is urged, the judgment of the court of appeal could start straightaway with a discussion of the particular point or points, its decision thereon, and the effect of that decision.
41.94. We have considered the suggestion, but are not inclined to recommend any amendment. The present rule is sufficiently elastic. To enact provisions on the lines suggested would make the rule cumbersome, without making any difference in practice.
Order 41, rule 33
41.95. Under Order 41, rule 33, the Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection.1
The illustration to the section is as follows:-
"A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y."
We are of the view that this rule should be amended to cover cross suits and also a suit in which two decrees are passed. This is desirable in order to remove the difficulty caused by the uncertainty2 in this behalf as regards res judicata.
1. The proviso to the rule is not material, for the present purpose.
2. See discussion relating to section 11.
Recommendation
41.96. Accordingly, we recommend that the main paragraph of the rule should be revised as follows:-
"33. The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power
(a) may be exercised by the court notwithstanding that the appeal is as to part only of the decree, and
(b) may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection, and
(c) may, where there have been decrees in cross suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.
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