KHALI Vs. SADHABA BEWA

JUDGEMENT

(1.) ON 24-2-66 arguments in the suit were heard and the case was posted for judgment to 3-3-66. On that day the learned Munsif passed a queer and unprecedental order, which may be extracted:

(2.) THE order of the learned Munsif is wholly illegal and without jurisdiction. A judge hardly acts as a lawyer. It was not a part of the duty of the learned Munsif to have sympathy for the plaintiff for the conflict arising between the pleadings and the evidence If the evidence is not in consonance with the pleadings, it may be thrown out. It is open to the Judge also to accept the evidence if the conflict is not of a serious nature and both can be reconciled. But in no circumstance an amendment should be suggested and allowed by a Judge, merely because evidence and the pleadings do not tally. The learned Munsif failed to realise that by the amendment allowed a pew trial would begin on various new issues regarding existence of right of easement of a character not already pleaded.

(3.) IN the result, the Civil Revision is allowed and the order of the learned Munsif allowing amendment is set aside. He must now proceed to deliver judgment on the basis of the materials already on record. If he so chooses, he may hear the learned Advocates for the parties and then proceed to deliver judgment. As there is no appearance for the opposite parties, there will be no order for costs.