Law: Civil Procedure Code (V of 1908)

Section: 98

(a) Civil Procedure Code (V of 1908), S. 98 read with S. 4 and Letters Patent (Lahore), 26-Section 98 read with S. 4 of C. P. C. does not abrogate the Letters Patent-Reference to the third Judge of a High Court, on difference of opinion between two Judges of Division Bench, competent-[ Bhaidas Shivdas v. Bhai Gulab and others 48 I A 181 and Mst. Sardar Bibi v. Haq Nawaz Khan and another A I R 1934 Lah. 371 ref.]. (b) Civil Procedure Code (V of 1908), O. XLI, r. 27(1), (2)­Additional evidence-Reasons for admission -Requirement must 6e genuine-Need for additional evidence must be felt by Court-Existence of apparent lacuna or defect which hinders administra­tion of justice-Grounds to be factual-[Division Bench feeling need of additional evidence and offering parties opportunity which parties did not avail-Case referred to third Judge on difference of opinion in disposal of appeal-Third Judge calling for additional evidence, not improper]. The rules of procedure are not made "for the purpose of hindering justice" and, as such, the Court should not give such a restricted interpretation to the provisions of rule 27 of Order XLI of the Code of Civil Procedure as would, in effect, amount to tying down the hands of the appellate Court and stand in the way of doing complete justice in a cause. The rule merely pres­cribes that the requirement must be a genuine one and that the need for the additional evidence must be felt by the Court itself after it has examined the evidence already on the record and come to the conclusion that there is apparent some inherent lacuna or defect which hinders the due administration of justice. If it comes to this conclusion, then it has the power to call for additional evidence subject to the condition that it must record its reasons for doing so, in order that a higher Court may be able to ascertain that the need was not merely imaginary but based upon factual grounds. In this case the Court originally hearing the appeal had felt the necessity of such evidence and had even offered to give time to the parties to produce the same, but the parties had not themselves availed of this opportunity. The third Judge, to whom the appeal was referred…

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