CHELLAPPAN PILLAI Vs. DEVASIA

JUDGEMENT

(1.) THE defendant is the appellant. This second appeal arises out of a suit for recovery of a sum of Rs. 2,000/- on the basis of Ext. P-l dated 23 4 1954 alleged to have been written by the appellant in favour of the respondent. THE appellant denied the execution of Ext. P-l and also denied having received any amount from the respondent under Ext. P-l. THE learned Munsiff holding that Ext. P-l is not genuine dismissed the suit. THE learned additional District Judge, Trivandrum, , decreed the suit.

(2.) THE appellant who was examined as dw. 1 in the trial court was recalled and examined by the appellate court as a court witness and that evidence was also taken into consideration by the appellate Judge in decreeing the suit.

(3.) DW. 1 was examined by the appellate court as a court witness on 28-1-1961. The judgment in the case was pronounced on 30-1-1961. I do not find any order nor has any been brought to my notice passed by the learned Judge in compliance of the provisions of O.41, R.27 & 29 before the examination of dw. I by the appellate court. As has been stated by their Lordships of the Supreme Court in Arjan Singh v. Kartar Singh A. I. R.1951 S. C. 193 the legitimate occasion for the application of O.41, R.27 C. P. C. is when examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the court, of fresh evidence and the application is made to import it. Though the decision to examine the appellant was at the time the appeal was heard the procedure which the learned Judge should have followed was to record the reasons for the examination of DW.l and specify in the proceedings the points on which the evidence should be confined. This was not done. This violates O.41, R.29 C. P. C. & the procedure adopted by the learned Judge is therefore highly irregular. In Manmohan Das v. Mt. Ramdei A. I. R.1931 P. C. 175 the question arose whether a deed of gift executed by Behari Lal in favour of his wife was fictitious or was a genuine transaction. The Subordinate Judge held that the transaction was fictitious. It had come out in evidence that one Mr. Dube, a barrister, was connected in the execution of the gift deed and he was not examined by either party. The High Court in appeal called Mr. Dube as a witness for the court. No orders were passed by the High Court at the time when the Judges decided to call Mr. Dube as a Court witness. The following reasons were given in the judgment of the High Court: