MAYA DEVI Vs. BHISHMA SHARMA

JUDGEMENT

(1.) Plaintiff's Title Suit No. 548/71 of 1968/70 was dismissed by Additional Munsif Motihari on 28th July, 1973. He filed an appeal, which was disposed of by the 1st Additional District Judge, Motihari on 28-3-1981. The appeal was also dismissed and the plaintiff preferred a Second Appeal in this court, which was registered and numbered as Second Appeal No. 348 of 1975. The second appeal was allowed by this court on 9th Feb., 1979 and the judgment and decree passed by the lower Appellate Court was set aside. The case was sent back for a decision in accordance with law and in the light of the observations made in the judgment. When the matter went back to the learned Additional District Judge he heard the parties and by his judgment dated 28th of March, 1981 set aside the judgment and decree, passed by the trial Court and remanded the case for a fresh decision by the trial Court after taking additional evidence. The defendants Nos. 1 and 2 (defendants first party) have filed this Miscellaneous Appeal against this order, passed by the learned Additional District Judge.

(2.) The question is as to whether the learned Additional District Judge could set aside the judgment and decree of the trial Court and remand the case to the trial Court for a fresh decision after taking additional evidence in the case. The answer must be in the negative. It has been contended by Mr. Kailash Roy, learned counsel appearing on behalf of the appellant that the lower Appellate Court, to whom the case was remanded by the High Court for a fresh decision in accordance with law, cannot pass an order like this and set aside the judgment and decree of the trial Court for the purpose of taking additional evidence in the case.

(3.) It appears that an application under Order 41, Rule 27 had been filed before the learned Additional District Judge on behalf of the plaintiff praying that the plaintiff may be allowed to adduce some additional evidence. The prayer was allowed on 4-7-1980. When the appeal was taken up for final hearing it was submitted on behalf of the plaintiff that some fresh important materials were also "to be taken in evidence by way of documentary evidence. The learned Additional District Judge thought that it was better that the trial Court gave a fresh judgment instead of recording additional evidence and sending the records to the court of the Additional District Judge. In these circumstances, the learned Additional District Judge set aside the judgment and decree passed in the suit and remanded the case to the trial Court for a fresh decision after recording additional evidence. The reason, which has been given by the learned Additional District Judge for setting aside the judgment and decree of the trial Court and remanding the case for a fresh decision is, in my opinion, wholly inappropriate. Order 41, Rule 27 provides that the parties to an appeal shall not be entitled to produce additional evidence in the appellate Court, but if the trial Court has refused to admit any evidence, which ought to have been admitted or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not be produced by him after exercise of due diligence at the time when the decree was passed or the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, the appellate Court may allow such evidence or document to be produced or witness to be examined. This Court, while remanding the case had made certain observations and had directed the learned Additional District Judge to decide the case in accordance with law. It may be open to the learned Additional District Judge to take additional evidence in the case, which he had rightly allowed by his order dated 14-7-1980 for the purpose of giving a fresh decision, but to set aside the judgment and decree of the trial Court for the purpose of admitting additional evidence is an unknown procedure which has been followed by the learned Additional District Judge, The learned Additional District Judge, after recording additional evidence may consider the evidence on the record and come to any finding. But for the purpose of admitting additional evidence he cannot set aside judgment and decree of the trial Court. It was open to him to follow the procedure laid down in Order 41, Rule 28 of C.P.C. directing the trial Court to take such evidence and send it back to him.