MATHURA PRASAD Vs. ANANT RAM

JUDGEMENT

(1.) THIS is defendant's second appeal against a decree for Rs. 996/ - passed against him. The respondent's suit was for recovery of Rs. 921/ - as the principal sum and Rs. 75/ - as interest thereon. The basis of the suit was a bond dated Miti Vaishak Badi 2 Samvat 2009 written on plaintiff's Bahi and alleged to have been executed by the defendant by affixing his thumb impression on it. The defendant denied the execution of the bond and attacked the suit as actuated by malice and previous enmity between the parties.

(2.) THE trial Judge found that the bond was executed by the defendant. The defendant's appeal was disallowed by the Additional District Judge, Bhind.

(3.) THE second contention urged by Shri Gupta is that the learned Additional District Judge looked at other entries in the plaintiff's book which had not been produced in evidence and which were not on the record. The grievance is that the appellate court thus acted contrary to the procedure and the law of evidence and, further, he first of all created a prejudice in his own mind by the material outside the record and then discussed the evidence of the hand -writing expert produced by the defendant. This contention is correct inasmuch as the lower appellate court was not entitled to consider any document which was outside the record. That court does not say in its judgment that it was admitting them by way of additional evidence under the 27th rule of Order 41, Civil Procedure Code. Shri Gupta argues that if that extraneous material had been produced in evidence by the plaintiff, the defendant would have had an opportunity to show that they were not reliable and also to produce rebutting evidence, if so advised This argument too has considerable force in it.