SARJUBAI MADANGOPAL BHANGADIA Vs. PUKHRAJ MOTILAL KOCHAR

JUDGEMENT

(1.) [His Lordship after stating the facts and dealing with points not material to this report, proceeded.] Mr. Padhye then contended that in any event the plaintiff is entitled to a decree as the heir of Madangopal as she has now obtained the necessary succession certificate. In this connection, it must be noted that in the trial Court the plaintiff had not produced succession certificate, nor had she made any application whatsoever for the same. It seems that during the pendency of the suit on February 22, 1955, the learned Judge had drawn the attention of the plaintiff's advocate to the fact that as regards her alternative claim she would have to produce a succession certificate. As at the date of the judgment she had not obtained succession certificate, he dismissed her suit without considering the alternative claim.

(2.) IT is argued by Mr. Deo, that it is not within the power of the appellate Court to reverse the decree of the trial Court on the ground that she has now obtained a succession certificate. Mr. Deo relies on Fateh Chand v. Muhammad Bakhsh I.L.R. (1894) All. 259. and Mt. Habib Fatma v. Mt. Arjumand Khatun : AIR1927All228 where it is held that if the plaintiff failed to produce succession certificate in the trial Court, the appellate Court could not reverse the decree even if a succession certificate were produced before the appellate Court.

(3.) AS early as 1902 Bhaahyam Ayangar J. in Kristnama Chariar v. Mangammal I.L.R (1902) Mad. 91 under the older procedural Code held that hearing of the appeal was in. the nature of rehearing of suit and this was reaffirmed under the present Code in Kanakayya v. Janardhana Padhi I.L.R (1910) Mad. 439 after full discussion. Order XLI, Rule 33, of the present Code is similar to Order LVIII, Rule 5, of the Rules of the Supreme Court. The reasoning, therefore, in Quilter v. Mapleson and Attorney -General v. Birmingham, Tame and Rea, District Drainage Board for holding that appeal is in the nature of a rehearing of the suit applies.