MANUAL T. PAIKADAY Vs. KERALA STATE

JUDGEMENT

(1.) It is contended, and rightly, that Government is not a favoured litigant in Court. I should add that Government cannot get away with it by being an indifferent litigant either. These comments have been provoked by the failure of the Government, as defendant in O.S. No. 114 of 1965, to produce a certified copy of what is called the Middle Income Group Housing Scheme at the appropriate stage in the Trial Court, with the result that at the time of the arguments before the learned Munsiff an alleged copy of the said scheme was placed in his hands, was looked into and acted upon by him and the appellate Court was forced to set aside that decree for the reason that "as the copy placed for perusal is not proved in the case that cannot be acted upon and the lower Court was wrong in deciding the case without proper proof of that record." However, the appellate Court felt "that the State should be given a chance either to prove that record formally or to show to the Court that the same was published in the Government Gazette, in which case the Court could take judicial notice of it." A remand was ordered and the C.M. appellant challenges that order before me.

(2.) The suit is based on the following facts: The plaintiff had entered into an agreement with the District Collector, Kottayam, who, under the scheme mentioned above, had sanctioned a loan of Rs. 12,000/-, on the plaintiff furnishing security and agreeing to abide by certain conditions not set in Ext. D1. The initial instalment of the loan was given, but, for alleged failure to do the necessary items of work and take the building construction to a stage required under the scheme, the Collector not only did not grant the further instalments of the loan but cancelled the loan altogether under Ext. D2. An appeal carried to the Board of Revenue by the plaintiff proved unsuccessful and thereafter the plaintiff, after complying with S.80, Civil Procedure Code, brought the present suit for damages for breach of contract to grant the loan indicated in Ext. D1 agreement. The defendants, namely, the State and the Collector, denied the liability; for, according to them, the breach was committed by the plaintiff in that he had not complied with the terms and conditions incorporated in the scheme on the basis of which the loan had been sanctioned. The Trial Court upheld the defence and dismissed the suit, but the appellate Court found fault with the Trial Court for resting its judgment on a copy of the scheme which was not properly proved before it but, as stated earlier, gave an opportunity to the State to prove the said document in a proper way and, to enable this to be done, remanded the case. The plaintiff's grievance, inter alia is that there were no rules, and none statutory, as part of the scheme by which he was bound; also the inability to complete the first stage of the construction of the building was largely due to the failure to get the cement permit for which the Collector was responsible, since he rejected the application for cement permit made by the plaintiff. The 2nd defendant - Collector contended that the grant of cement permits was not obligatory on his part before he could insist upon the conditions of the housing loan scheme and if the plaintiff has been disabled from completing the construction as contemplated in the scheme for want of cement that could not stand in the way of the cancellation clauses in the scheme being enforced. Be that as it may, the only question before me is as to whether the order of remand to enable the Court to have the scheme produced and proved before it is legal or not.

(3.) Order 41 R.27 C.P.C. deals with production of additional evidence in the appellate Court. We are not concerned with clauses (a) and (b) of R.27(1) C.P.C. as amended in Kerala but only with clause (c). Counsel for the appellant contends that only where the appellate Court requires any document to be produced to enable it to pronounce judgment or for any other substantial cause can the appellate Court allow such evidence to be produced. The sine qua non of admissibility of evidence, at the appellate stage, is its own requirement of that document to enable it to pronounce judgment. Where judgment could be pronounced in the absence of the document, the appellate Court should not allow the document to be produced. The true test is, as expounded by the Privy Council and by the Supreme Court, whether the judge considers that he requires the additional evidence to enable him to pronounce judgment. Where the Court requires additional evidence to enable it to pronounce judgment it is no bar to its reception that the party might, if he had been diligent, have produced the same. This being the law, counsel contends that by having recourse to the power of remand the Court should not circumvent the restrictions regarding additional evidence at the appellate stage. The provision that regulates the power of remand is contained in O.41 R.23 C.P.C. The said rule, as amended in Kerala, is rather wide and enables the appellate. Court, if it considers it necessary in the interests of justice to remand the case, to do so and further to direct what issue or issues shall be tried in the case so remanded. The question before me is whether O.41 R.23 or 27 C.P.C. has been violated in this case.