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Balai Chandra Hazra vs Shewdhari Jadav on 21 February, 1978
Showing the contexts in which fresh documentary evidence in second appeal appears in the document
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3. Ordinarily, an appellant is not entitled in an appeal under clause-15 of the Letters Patent to be heard on points which have not been raised before the Judge from whose judgment of appeal is preferred. If in second appeal the findings of fact recorded by the first Appellate Court are taken as binding, unless fresh additional evidence is permitted to be led when again appreciation

4. When pleadings are amended at the stage of the appeal under clause-15 Of the Letters Patent and fresh allegations of facts are thus introduced in the controversy which necessitate additional evidence being permitted, it would not be open to the Court to proceed to record evidence and to appreciate the evidence and record findings of fact, a function which even ordinarily is not undertaken by the High Court hearing the Second Appeal, much less can it be done while hearing an appeal under Clause-15 of the Letters Patent. [154 G-H]

7. When a Bench of a High Court is hearing an appeal preferred upon a certificate granted under Clause-15 of the Letters Patent by a Single Judge of the High Court who by his judgment has disposed of the of the Second Appeal, the Appellate Bench would be subject to the limitation on its power and jurisdiction to appreciate or re-appreciate evidence and to record findings fact which were never raised before the trial court or the First Appellate Court as the pleadings were permitted to be amended by it and the question was raised for the first time before it, to the same extent as the High Court hearing the Second Appeal with constrains of Ss. 100 and 103 of the Code. Admitting evidence is entirely different from appreciating it and acting upon

permission to adduce additional evidence to the effect that the requirement of the landlord stood satisfied because he had recovered possession of four rooms on the first and second floors of the same building. A contention was also raised by him that the suit filed by the landlord was incompetent, it having been instituted within a period of three years of the acquisition of his interest as landlord in the premises by transfer and was accordingly hit by sub-section (3A) of section 13 of the West Bengal Premises Tenancy Act, 1956, as amended by the West Bengal Premises Tenancy (Second Amendment) Act, 1969. The contentions raised by the appellant in the second appeal were overruled by the High Court and the appeal was dismissed and the decree for eviction was affirmed. Upon a certificate granted by the learned single Judge of the High Court the appellant preferred appeal under clause 15 of the Letters Patent. When the appeal under clause 15 of the Letters Patent was pending in the High Court, respondent plaintiff sought and obtained leave to amend the plaint and consequently the appellant defendant filed additional written statement. Thereafter the court framed fresh issues arising from