NORTH EASTERN RAILWAY ADMINISTRATION, GORAKHPUR v. BHAGWAN DAS (D) BY LRS

HELD : 1.1 Though the general rule is that ordinarily the appellate court should not travel outside the record of the lower court and additional evidence, whether oral or documentary, is not admitted, but Section 107 C.P.C., which carves out an exception to the general rule, E enables an appellate court to take additional evidence or to require such evidence to be taken subject to such conditions and limitations as may be prescribed. These conditions are prescribed under Order 41 Rule 27 C.P.C. [Para 12] [423-8, CJ F

1.2 Under clause (b) of sub rule (1) of Rule 27 Order 41 C.P.C., evidence may be admitted by an appellate authority if it 'requires' to enable it to pronounce judgment 'or for any other substantial cause'. The question whether G looking into the documents, sought to be filed as additional evidence, would be necessary to pronounce judgment in a more satisfactory manner, has to be considered by the court at the time of hearing of the appeal on merits. [Paras 13 and 14] [423-G; 424-A, G; 425-A] H 418 SUPREME COURT REPORTS [2008] 6 S.C.R. A K. Venkataramaiah v. A. Seetharamareddy and Ors. 1963 (2) SCR 53- followed. Parsotim Thakur and Ors. v. Lal Mohar Thakur and Ors. AIR 1931 PC 143 - relied on. B

1.3 Order 6 Rule 17 C.P.C. postulates amendment of pleadings at any stage of the proceedings. All amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, and (b) of being necessary for the purpose of determining c the real questions in controversy between the parties. Amendments should be refused only where the other party cannot be placed in the same position as if the pleading had been originally correct, but the amendment would cause him an injury which could not be compensated in costs. [Para 15] [425-8, C, DJ 0 Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil and Ors. AIR 1957 SC 363- relied on Gajanan Jaikishan Joshi v. Prabhakar Mohan/a/ Ka/war E (1990) 1 SCC 166 - referred to.

1.4 High Court has altogether failed to consider the application filed by the appellant under Order 41 Rule 27 C.P.C. Even the application under Order 6 Rule 17 C.P.C. has not been dealt with in its correct perspective and the F High Court was in error in rejecting the same on the sole ground that such an application was not maintainable at the stage of second appeal. [Para 11] [422-H; 423-A]

1.5 The High Court did not examine the record of the case with the thoroughness which was expected at the G time of disposal of the pending applications. High Court was not even aware of the pendency of the application under Order 41 Rule 27 C.P.C. seeking leave to adduce additional evidence. A perusal of the documents, which came to light pursuant to the directions given by the High H Court, prima facie, goes to show that these are likely to NORTH EASTERN RAILWAY ADMN., GORAKHPUR v. BHAGWAN DAS (D) BY LRS. [D.K. JAIN, J.] 419 widely affect the decision of the Court in one way or the A other. If the stand of the appellant, which, according to them, is borne out from the documents now on record, is found to be correct, then obviously these will have material bearing on the core issue, namely, whether the decree is a nullity, having been allegedly obtained by concealing B material facts and playing fraud on the Court. It is trite that a judgment or decree by the first court or by the highest court - obtained by playing fraud on the Court' is a nullity and non est in the eyes of law. The High Court was bound to consider the application before taking up the appeal . C [Para 17] [425-E, F, G; 426-A, 8, CJ