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(c) To frame issues and refer them for trial;

(d) To take additional evidence or to require such evidence to be taken.

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(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on courts of original jurisdiction in respect of suits instituted therein.

The provisions of S. 107 as elucidated by Order XLI, Rule 27, are clearly not intended to allow a litigant who has been unsuccessful in the lower court to patch up the weak parts of his case and fill up omissions in the court of appeal. Under Rule 27, cl. (1) (b), it is only where the appellate court ‘requires’ it, that is, finds it needful that additional evidence can be admitted.

It may be required to enable the court to pronounce judgment, or for any other substantial cause, but in either case it must be the court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence but when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent.

It is, however, a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial judge on a question of fact.

It would not detract from the value to be attached to a trial judge’s finding of fact that the judge does not expressly base his conclusion upon the impressions he gathers from the demeanour of witnesses.

The appellate court has to bear in mind that it has not the advantage which the trial judge had in having the witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial judge.

The rule is—and it is nothing more than a rule of practice—that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial “judge on a question of fact.

The duty of the appellate court in estimating the value of oral testimony is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which, in the opinion of the court, outweighs such finding.

In an appeal against a trial court decree, when the appellate court considers an issue turning on oral evidence, it must bear in mind that it does not enjoy the advantage which the trial court had in having the witnesses before it and of observing the manner in which they gave their testimony.

When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the appellate court should permit the findings of fact rendered by the trial court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial court or there is sufficient balance of improbability to displace its opinion as to where the credibility lies.

In this connection, reference may usefully be made to W.C. Macdonald v. Fred Latimer, where the Privy Council laid down that when there is a direct conflict between the oral evidence of the parties, and there is no documentary evidence that clearly affirms one view or contradicts the other, and there is no sufficient balance of improbability to displace the trial court’s finding as to the truth of the oral evidence, the appellate court can interfere only on a very clear proof of mistake by the trial court.

In Watt v. Thomas, it was observed: “it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.” This was adverted to with approval by the Privy Council in Sara Veeraswamy v. Talluri Narayya, (deceased) and found favour with the Supreme Court in Sarju Pershad v. Raja Jwaleshwari Pratap Narain Singh.

It seemed to their lordships of the Supreme Court that this approach should be placed in the forefront in considering whether the High Court proceeded correctly in the evaluation of the evidence before it when deciding to reverse the findings of the trial court.

The principle is one of practice and governs the weight to be given to a Ending of fact by the trial court. There is, of course, no doubt that as a matter of law if the appraisal of the evidence by the trial court suffers from a material irregularity or is based on inadmissible evidence or on a misreading of the evidence or on conjectures and surmises the appellate court is entitled to interfere with the finding of fact.

A somewhat restricted view has been taken by the Allahabad High Court in the cases discussed below.

No doubt, the conclusion of the trial court which has an advantage of hearing the oral evidence and watching the demeanour of witnesses and has, therefore, a better opportunity of appreciating the oral evidence should not be lightly disturbed by the first appellate court.

But this rule is nothing more than a rule of practice and by invoking this rule of practice the High Court in second appeal cannot interfere with the conclusions of the firs? appellate court when they are fully supported by relevant and admissible material on record. A perusal of the judgment of Sarju Pershad Ramdeo Sahu v. Jwaleshwari, makes it clear that what was observed by the Supreme Court was that the rule was nothing more than a rule of practice.

The legal position in the matter of reappraisal of evidence by the appellate court under S. 107, C.P.C. is that the findings of the first appellate court should be sustainable on admissible evidence on the record, and it is not necessary that judgment of the first appellate court should come into close quarters with that of the trial court.

It was observed in Chandra Shekhar’s case that the finding of the trial court on a question of fact arrived at by appreciation of evidence can be reversed by the lower court in reappraisal of the evidence.

Thus where in the suit for possession of a land, there being no documentary evidence as to the title of the parties to the suit land, the trial court after appreciating the evidence upheld the credibility of the plaintiff’s witnesses and decreed the suit, and in appeal the lower appellate court on appraisal of the evidence reversed the finding of the trial court as to the credibility of plaintiff’s witnesses, the reversal was legal and proper.

Where the decision of the lower appellate court is based upon a consideration of the material on record, the appellate court is not required to meet each and every reason advanced by the trial court; and as such interference in appeal is unwarranted.

Although it is generally desirable that the appellate court should not appraise the oral evidence for itself, yet S. 96 enjoins upon an appellate court to hear the appeal and to arrive at its own conclusion about the controversy in suit. It is not bound by the findings recorded by the trial court in the same manner as a second appellate court is bound by the findings of fact recorded by a lower appellate court.

The trial court is in a better position to appreciate the oral testimony of the witnesses than the appellate court as it has an advantage to watch the demeanour of the witnesses. However, it is open to the appellate court to disturb that appreciation of evidence in cases where the trial court has misread the evidence or has overlooked the glaring circumstances of the case.

When in the order of the trial court it has been recorded that the order has been passed by consent of parties, the appellate court cannot go into the question of correctness of such recording in the order. It is well-settled principle that the parties by consent cannot override a provision of a statute.

It is the duty on the part of the Court to satisfy that the compromise order satisfies the statutory requirements and such consent order is not opposed to any law, inasmuch as the court cannot direct to do a thing which is contrary to law.

The trial court set aside the dismissal passed in departmental proceeding on finding that proper opportunity of hearing was not given in departmental proceedings and unauthorised absence from duty having been regularised charge of misconduct does not survive. Lower appellate court said nothing about finding opportunity of hearing but confirmed finding that charge of misconduct did not survive.

The other finding stood confirms. But lower appellate court cannot remand the case to punishing authority. High Court dismissed the second appeal summarily without a adverting to inconsistent judgment. Supreme Court held it improper, set aside the order of High Court and upheld the judgment and decree of trial court setting aside dismissal.

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