NEDUMKANDATHIL KOYAKUTTY Vs. KUNHALI AND ORS.

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought for the recovery of a sum of Rs. 4,387 -4 -0 as arrears of rent and the Jenmabhogam due to the plaintiff's tarwad under a kaichit dated 28th August, 1929, executed by defendants 1 and 2 in favour of the plaintiff's tarwad and interest thereon. The main plea of the defendants was a plea of discharge and in support of it they produced three receipts, Exs. II, III and IV and a letter Ex. V. All these documents bear the signature of Chappunni Valia Nair, a former karnavan of the plaintiff's tarwad, who died sometime in June, 1939 and was succeeded by the plaintiff. The defendants also say that there is a signature of the plaintiff himself on Ex. II. The plaintiff denied that there was any payment as recited in the said receipts. He denied that he ever signed on Ex. II. He further pleaded that these receipts must have been granted by the kariasthan at the time one Krishna Menon to defendants 1 and 2 as a result of fraud and collusion between them and him. The learned Subordinate Judge of South Malabar on a consideration of the oral and documentary evidence tendered by both the parties, held against the defendant's plea of discharge and granted a decree to the plaintiff. The defendants appealed to the District Judge, South Malabar. After hearing arguments in part, the learned Judge summoned Krishna Menon, the kariasthan as a Court witness and allowed him to be cross -examined by both sides. He took into account his evidence along with the other evidence already on record and disagreeing with the trial Court, dismissed the plaintiff's suit.

(2.) AMONG other grounds, Mr. Sitarama Rao for the plaintiff -appellant in the second appeal put forward as a main ground that the lower appellate Court was not entitled in law to summon and examine Krishna Menon and the conditions requisite under Order 41, Rules 27 and 29 were not fulfilled in this case. It is common ground that the only provision which applies to this case is Order 41, Rule 27, Clause (c)(as amended in Madras) which is as follows:

(3.) IT is not disputed that at the time when the learned District Judge decided to examine Krishna Menon as a Court witness, he did not pass any order giving any reasons for the course that he was taking. The diary for the case shows as against 2nd September, 1943, the following entry: