K. Venkataramiah vs A. Seetharama Reddy and Ors

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 676 of 1962

Decision Date: 12 February 1963

Coram: K.C. Das Gupta, P.B. Gajendragadkar, K.N. Wanchoo, M. Hidayatullah, J.C. Shah

In the matter titled K. Venkataramiah versus A. Seetharama Reddy and others, the judgment was delivered on 12 February 1963 by the Supreme Court of India. The opinion was authored by Justice K. C. Das Gupta and was pronounced by a bench comprising Justices K. C. Das Gupta, P. B. Gajendragadkar, K. N. Wanchoo, M. Hidayatullah and J. C. Shah. The petition was filed by K. Venkataramiah (the petitioner) against A. Seetharama Reddy and the additional respondents. The case is reported in 1963 AIR 1526 and 1964 SCR (2) 35. The legal questions involved the provisions of the Election Petition Act relating to the age of a candidate at the date of nomination or election, the admissibility of additional evidence in a High Court proceeding, the circumstances in which such evidence may be taken, the effect of consent of the parties, as well as the relevant constitutional provision under Article 173(b) of the Constitution of India and Order 41, Rule 27 of the Code of Civil Procedure, 1908.

The petitioner contended that the election of the respondent was invalid for several reasons. He argued that the respondent was younger than thirty years on the date prescribed for the election, that the conduct of certain state ministers amounted to undue influence over the electorate, that the secrecy of the ballot had been compromised, and that the final electoral roll had been improperly altered by deleting the names of some voters. The Election Tribunal examined these claims and rejected all of them, thereby dismissing the election petition. The petitioner appealed the Tribunal’s decision, but the High Court affirmed the Tribunal’s findings and also dismissed the appeal.

Subsequently, the petitioner obtained special leave to approach the Supreme Court. He primarily challenged the High Court’s determination of the respondent’s age, asserting that the High Court had relied on evidence that was not legally admissible and that the additional evidence had been admitted without observing the statutory requirements. The Supreme Court held that the High Court was within its authority to admit additional evidence when such evidence was required either to enable the court to render a judgment or for any other substantial cause as contemplated by Rule 27(1)(b) of Order 41 of the Code of Civil Procedure. The Court observed that the High Court could not be said to have ordered the admission of additional evidence without exercising its mind on the matter.

The Court explained that an appellate court possesses the discretion to admit extra evidence not only when it is essential “to enable it to pronounce judgment” but also when it serves “any other substantial cause.” The Court illustrated that there are situations in which, although the record appears sufficient for a decision, the court may still find it necessary to fill gaps that obscure the truth, thereby allowing a more satisfactory adjudication. Such circumstances justify the admission of additional evidence on the basis of a substantial cause beyond the strict necessity of pronouncing judgment.

Furthermore, the Court noted that the High Court’s failure to record the reasons for admitting the additional evidence does not

The Court observed that the failure to set out reasons for the admission of additional evidence does not automatically invalidate that admission. Although the rule requiring reasons is not mandatory, it becomes important when a further appeal is possible from the appellate Court’s decision, because the higher Court may need those reasons to assess whether the lower Court exercised its discretion judicially. Consequently, the omission of reasons should be regarded as a serious flaw. The Court further held that when additional evidence is taken with the consent of both parties or without objection at the time it is introduced, a party cannot later complain about its admission. Since the appellant did not contest the admission of the additional evidence, the Court rejected the objection. In support of this position, the Court referred to several authorities, including 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.

The judgment concerned Civil Appeal No. 676 of 1962, which was filed by special leave against the judgment and decree dated 5 September 1961 of the Andhra Pradesh High Court at Hyderabad in Special Appeal No. 3 of 1961. The appellant was represented by counsel, while respondents No. 1 and No. 2 were each represented by their respective counsel. The judgment was delivered on 12 February 1963 by Justice Das Gupta. The appeal challenged a decision of the Andhra Pradesh High Court that had upheld an order of the Election Tribunal, Hyderabad, whereby the Tribunal dismissed an election petition filed by the appellant. The petition sought a declaration that the elections of three individuals—respondent Seetharam Reddy, one Anandam, and M. Ataur Rahman—were void, and that the appellant should be declared duly elected to the Legislative Council of Andhra Pradesh from the Telangana Graduates Constituency. In the present appeal, the Court confined its consideration to the election of respondent Seetharam Reddy, ignoring the validity of the elections of Anandam and M. Ataur Rahman. The appellant’s principal ground of challenge was that, in determining the crucial question of Seetharam Reddy’s age on the date of the election, the High Court had relied on evidence that was not lawfully admissible. While numerous objections to Seetharam Reddy’s election had been raised in the original petition, only four were finally presented before the Election Tribunal: (1) disqualification under Article 173(b) of the Constitution because his age was below thirty years on the relevant date; (2) alleged undue influence exercised by certain State Ministers; (3) failure to maintain ballot secrecy; and (4) improper deletion of voters’ names from the final list. The Tribunal rejected all objections and dismissed the petition, a finding affirmed by the High Court. The appellant now contended that the High Court’s finding on the age issue was tainted by an error of law, since additional evidence had been admitted without observing the statutory requirements.

Four specific objections were raised against the election of the respondent, Seetharam Reddy. The first objection alleged that Seetharam Reddy was ineligible to be chosen for a seat in the Legislative Council under Article 173(b) of the Constitution because his age was below thirty years on the relevant date. The second objection claimed that the election had been tainted by undue influence exerted on the voters by certain Ministers of the State of Andhra Pradesh. The third objection asserted that the secrecy of the ballot had not been maintained. The fourth objection contended that the election was void because the final list of voters had been improperly altered by deleting names. The Election Tribunal examined each of these objections and rejected all of them, thereby dismissing the petition. On appeal, the High Court affirmed the Tribunal’s findings on every point and also dismissed the appeal.

Confronted with the principle that factual findings of this nature were not open to challenge before this Court on a petition for special leave, the appellant argued that the High Court’s decision on the age question was affected by an error of law. The appellant maintained that the High Court had admitted and considered additional evidence without observing the statutory requirements for such admission. A substantial amount of oral and documentary evidence had been presented before the Tribunal concerning Seetharam Reddy’s age. The petitioner attempted to prove that Seetharam Reddy was born in October 1931, while the respondent asserted a birth year of 1928. The Tribunal found the oral testimonies of both sides to be unreliable and consequently rejected them. It also dismissed most of the documentary evidence, specifically documents labelled R‑5, R‑6, R‑11 and R‑12. Document R‑5 was a birth register, R‑6 was an entry in that register, R‑11 was a certificate purportedly issued by the Head Master of the Muslim High School in Kurnool regarding the respondent’s age, and R‑12 was an application allegedly made at the time of his admission to that school. The Tribunal concluded that Seetharam Reddy had not attended the Kurnool Muslim High School, thereby discrediting R‑11 and R‑12.

Furthermore, the Tribunal rejected the petitioner’s documentary evidence intended to establish that the respondent’s date of birth was 10 October 1931. Ultimately, however, the Tribunal decided the age issue against the petitioner by relying on documents connected with proceedings before the Judicial Committee of the Privy Council. Those documents indicated that the respondent was a major in the year 1356 Fasli. During that year, an appeal was pending before the Judicial Committee arising from a suit concerning the adoption of Seetharam Reddy by a person named Tuisamma. The opposing party in that suit filed a petition to have Seetharam Reddy declared a major. Exhibit R‑10 represented that petition. After notice was served, a power of attorney, known as a wakalatnama, was filed by Seetharam Reddy as a major in the appeal; this document, Exhibit R‑3, stated that his age was nineteen years. Exhibit R‑13 was the notice issued to Seetharam Reddy in those proceedings. The Tribunal considered these documents genuine and concluded that the respondent had been treated as a major in the Judicial Committee proceedings from and after 1356 Fasli, leading it to infer that he was not younger than thirty years on the date of his election or nomination.

The Tribunal held that there was no reason to doubt the authenticity of Exhibits R‑3, R‑10 and R‑13, and it observed that the respondent had been treated as a major in the proceedings before the Judicial Committee of the Privy Council beginning in the year 1356 Fasli. From that treatment, the Tribunal inferred that the respondent could not have been younger than thirty years at the time of his election or nomination. The High Court reached the same conclusion concerning the respondent’s age. In arriving at this conclusion, the High Court relied not only on the wakalatnama identified as Exhibit R‑3 but also on four additional documents: Exhibits R‑5 and R‑6, which the Tribunal had dismissed as unreliable, and Exhibits R‑19 and R‑20, which had not been presented as evidence before the Tribunal but were introduced before the High Court as additional evidence. The appellant argued that the High Court had acted without jurisdiction by admitting this additional evidence. The Court, however, expressed the view that even if the High Court had erred in admitting the extra material, such an error would not amount to a lack of jurisdiction but rather to a mistake in the exercise of jurisdiction.

The Court noted that the discretion to receive and admit additional evidence is not arbitrary but is a judicial discretion governed by the limits set out in Order XLI, Rule 27 of the Code of Civil Procedure, as earlier observed in Arjan Singh v. Kartar Singh (1). Accordingly, the Court must examine whether the High Court exercised that discretion properly. Section 107 of the Code of Civil Procedure authorises an appellate court to take additional evidence or to direct that such evidence be taken, subject to prescribed conditions and limitations. Rule 27 of Order 41 details those conditions, first stipulating that parties to an appeal are not entitled to produce fresh evidence, whether oral or documentary, in the appellate court. The rule then outlines two situations in which an appellate court may permit additional evidence: (i) when the lower court refused to admit evidence that ought to have been admitted, and (ii) when the appellate court itself requires the evidence for a substantial purpose, such as enabling it to deliver a judgment. In the latter situation, the rule mandates that the appellate court record the reasons for admitting the evidence. The additional documents introduced in the present case had not been offered before the Election Tribunal, and therefore the first situation did not apply. Consequently, the High Court admitted the evidence on its own initiative, invoking the second situation. The appellant contended that the High Court had made this order mechanically without applying its mind to the requirements of Rule 27 and had failed to record the reasons for admission, an omission the Court was called upon to consider.

In this case the appellant argued that the learned judges had made the order mechanically without applying their minds to the requirements of Order 41 rule 27 of the Code of Civil Procedure. The appellant supported this contention by pointing out that the High Court had not recorded its reasons for admitting the additional evidence, as required by the second clause of the rule. The significance of recording reasons for the admission of additional evidence has been emphasized in several decisions, for example Sreemanchunder v. Gopalchunder and Manmohan Das v. Mutsammat Ramdei. It is highly desirable that appellate courts do not overlook the provisions of clause (2) of the rule and that they set out their reasons for allowing extra evidence. Nonetheless, the Court is not prepared to accept the appellant’s argument 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 because the court appealed from had refused to admit evidence which ought to have been admitted, because the appellate court required it to enable it to pronounce judgment, or because there was any other substantial cause. When a further appeal lies from the decision of the appellate court, such a record is also necessary and useful to the court of further appeal in deciding whether the discretion under the rule was properly exercised by the lower court. The omission to record the reason therefore constitutes a serious defect. Even so the Court is unable to regard the provision as mandatory. It is not reasonable to think that the legislature intended that, even though the record plainly shows why the appellate court allowed the additional evidence and that the power was properly exercised within the limitation imposed by the first clause, the admission should be set aside merely because the second‑clause requirement was not complied with. It may be mentioned that as early as 1885, when considering a similar provision in the corresponding section of the 1882 Code, the High Court of Calcutta held that the requirement to record reasons is merely directory and not imperative, as stated in Gopal Singh v. Jhakri Rai. No case has been found to question that view. When the 1908 Code was framed and Order 41 rule 27 replaced the old section 568, the legislature chose to retain the provision without declaring it imperative, and the use of the word “shall” in rule 27 (2) does not, by itself, make the requirement mandatory.

In this case the Court observed that the rule does not require an absolute duty to record reasons, even though the word “shall” appears in Rule 27(2); the presence of that word alone does not make the requirement mandatory. Consequently, the Court held that the High Court’s failure to record its reasons for permitting additional evidence does not invalidate that admission. The Court also rejected the argument that the omission of reasons demonstrates that the High Court acted mechanically or without applying its mind to the rule. According to the record, the hearing of the appeal before the High Court began on 18 July 1961. After the appellant’s counsel finished his arguments, the respondent’s counsel addressed the Court, and he continued his arguments on the following day, 19 July. On 20 July 1961, on behalf of the respondent, Seetharam Reddy, an application was filed requesting that two registers of admission and withdrawals from the Government Muslim High School in Kurnool be admitted as additional evidence in the appeal. The petition itself is dated 18 July, while the supporting affidavit is dated 20 July. The affidavit stated that the appellant, Venkataramiah, had summoned both registers together with other documents, and that they had been produced before the Election Tribunal by the headmaster and subsequently transmitted to the High Court along with the case records. The affidavit further claimed that these documents bore “an important bearing” on the case and were “required to be looked into” in order to reach a just and correct conclusion on Issue No. 1. On the next day, 21 July, the appellant filed a counter‑affidavit objecting to the respondent’s prayer. In paragraph 6 of that counter‑affidavit the appellant submitted that the provisions of Order 41 Rule 27 of the Code of Civil Procedure had not been complied with, that the registers had not been offered as evidence before the Tribunal, and that although they were available at the time of the trial, the petitioner had exercised due diligence and therefore the registers were within his knowledge and could have been produced when the Tribunal rendered its decision. The appellant argued that admitting the registers would not serve the interests of justice nor be necessary for this Court to pronounce judgment, and that their admission would allow the party to depart from the case he had presented in his counter‑affidavit before the Tribunal, thereby creating an inconsistent case. Accordingly, the appellant maintained that the admission registers were neither relevant nor material. The High Court, however, issued an order on the same day authorising the taking of additional evidence.

In examining the issue, the Court referred to a passage taken from the judgment delivered in the appeal. The Court first observed that the Tribunal had refused to rely on Exhibits R‑11 and R‑12, holding that it was of the opinion that the first respondent had not attended Government Mohammadan High School, Kurnool, and that Exhibit R‑12 appeared to be fabricated if it was intended to relate to the present first respondent. The judgment then continued with the following narrative.

During the course of the arguments before the Court, it became apparent that two admission registers pertaining to the High School for the relevant period had, in fact, been called for by the learned counsel representing the petitioner and had been produced before the Tribunal. For reasons that remain unclear to the Court, these registers had not been formally proved nor marked as exhibits at that stage. The registers were subsequently forwarded to the High Court for consideration of the appeal and were placed before the Court.

The Court was informed that the first respondent had also applied for the summons of these registers from the High School. However, when the first respondent became aware that the petitioner had already summoned the registers, the Court found that it was unnecessary for the first respondent to make a further application. Consequently, the registers were already before the Tribunal and were now before the Court.

Because neither party could rely on the registers without them being proved and formally exhibited, the first respondent filed C.M.P. No. 7115/61 under Order 41 Rule 27 and Section 151 of the Code of Civil Procedure seeking to admit the registers as evidence and to mark them as exhibits. By an order dated 21‑July‑1961, the Court authorized the first respondent in the appeal to prove these documents before the Election Tribunal. The Court further directed that the appellant would be at liberty to cross‑examine any persons who might be called to prove the documents. Additionally, the Court instructed the Tribunal to record the evidence produced in proof of the two registers and to forward that record to the High Court for consideration in the appeal.

Accordingly, the Tribunal re‑called R.W. 8, the Head Master of 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 covering the period from 7 July 1919 to 15 January 1938 was marked as Exhibit R‑19, and the register covering the period from 30 June 1926 to 14 February 1949 was marked as Exhibit R‑20. The entries in these two registers that related to the first respondent were designated as Exhibits R‑21 and R‑24.

In view of the foregoing passage, the Court concluded that it could not be said that the High Court had issued the order for admission of additional evidence without exercising judicial consideration. It was evident that the High Court, after reviewing the evidence in the light of the arguments already presented before it, believed that admitting the entries from the admission registers would assist in ascertaining the truth regarding the age of Seetharam Reddy.

In this case the Court observed that the school registers had been produced as evidence. The appellant’s counsel argued very strongly that the volume of material already before the High Court was so extensive that it could not be reasonably suggested that the Trial Court needed any further evidence “to enable it to pronounce judgment.” The Court noted that the requirement for additional evidence was a requirement of the High Court, and it would not be appropriate for this Court to re‑examine the record to decide whether we, ourselves, would have needed such evidence in order to render a decision. The Court further explained that an appellate court possesses the authority to admit fresh evidence not only when it is necessary “to enable it to pronounce judgment” but also when there is “any other substantial cause” for doing so. It may happen, the Court said, that even though the court is satisfied it can deliver a judgment on the basis of the existing record, it may still consider that, in the interest of justice, a particular point that remains unclear should be clarified so that the judgment can be rendered more satisfactorily. Such a situation falls within the scope of admitting additional evidence for “any other substantial cause” under Rule 27(1)(b) of Order 41 of the Code of Civil Procedure. The Court added that this kind of requirement ordinarily arises only when an inherent gap or defect becomes evident upon examination of the evidence already before the court.

The Court then referred to the authority in Parsotim’s case, where the Privy Council held that fresh evidence may be admitted either to enable the court to pronounce judgment or for any other substantial cause, but in every instance the discretion must be exercised by the court itself. The Privy Council emphasized that the proper occasion for exercising this discretion is not simply whenever a party seeks to adduce fresh evidence before the appellate hearing, but only when, after reviewing the existing evidence, the court perceives an inherent lacuna or defect. The Council further observed that a defect may be pointed out by a party or that a party may move the court to supply the defect, yet the decisive factor must be the court’s own assessment of the evidence as it stands. Applying this principle, the Court was satisfied that the High Court had rightly permitted the admission of additional evidence because it was required either to enable the High Court to pronounce judgment or for any other substantial cause as contemplated by Rule 27(1)(b) of Order 41 of the Code. Consequently, the contention that the High Court’s decision on the respondent’s age was tainted by reliance on inadmissible evidence could not succeed.

The Court observed that the appellant had experienced a difficulty, which it chose to mention. It further recorded that the appellant had indeed filed a petition before the High Court contesting the reception of additional evidence. However, the Court examined the order issued by the High Court that denied the appellant’s request for a certificate under Article 133(1)(c) of the Constitution and found that the order explicitly stated that no objection was raised concerning the satisfaction of the requirements of Order 41 Rule 27 of the Code of Civil Procedure, either at the stage when the court directed the Tribunal to record the statements or at the time of hearing the appeal. This order had been rendered by the learned Chief Justice together with Mr Justice Chandrasekhara Sastry, who were also the judges that had permitted the admission of the additional evidence and subsequently heard the appeal. Accordingly, the Court held that although the appellant had made an application objecting to the admission of the additional evidence, the appellant had not pressed that application further. Relying on the principle articulated in Jagarnath Pershad v. Hanumam Pershad (1909) L.R. 36 I.A. 221, the Court stated that when additional evidence is taken with the consent of both parties or without any objection at the time it is taken, a party cannot later complain about its admissibility. Consequently, the appellant could not now contend that the additional evidence had been taken in breach of law. The Court found no reason to interfere with the factual findings on which the High Court based its decision. For these reasons, the appeal was dismissed with costs, and the order of dismissal was affirmed.