HARDEO MAHTO Vs. ABDUL AZIZ

JUDGEMENT

(1.) This application has been filed by the defendant and it is directed against the judgment and order passed by the learned Additional Subordinate Judge, 1st Court, Sasaram, on the 9th December, 1963, by which the judgment and decree of the trial Court have been set aside and the suit has been remanded to the trial court for fresh decision according to the directions given by the learned Judge on appeal. What happened in this case was that when the appeal was taken up for hearing, two petitions were filed by the plaintiffs-appellants, whose suit had been dismissed by the trial Court, praying that two documents may be admitted into evidence in the case. One document was a certified copy of the judgment of this Court passed in Second Appeals Nos. 644 and 645 of 1948. The other document was a certified copy of a show cause petition, purported to have been filed by Hardeo Mahto (the defendant) in a criminal proceeding under Section 144 of the Code of Criminal Procedure.

(2.) Upon a consideration of the points arising on these two petitions filed by the plaintiffs, the learned Judge admitted the certified copy of the judgment of this Court and marked it as Exhibit 5 for the plaintiffs-appellants. With respect to the other document, the learned Judge has held that the plaintiffs-appellants before him should be given an opportunity to prove that document according to law, for which the suit should be remanded to the trial court. For this reason, the judgment and decree of the trial court have been set aside and the suit remanded to give fresh opportunity to the plaintiffs to bring on the record the certified copy of the show cause petition mentioned above.

(3.) Having heard learned counsel for the parties, it appears to me that the order setting aside the decree and remanding the suit for fresh decision was erroneous. If the Court of appeal was of opinion that the certified copy of the show cause petition should be brought on the record as additional evidence, nothing prevented the court of appeal from taking that document into evidence, for the purpose of deciding the appeal itself, if any of the ingredients of Order XLI Rule 27 of the Code of Civil Procedure was fulfilled. No doubt at one place of the judgment the learned Judge has stated that the plaintiffs were guilty of laches in not bringing the copy of the show cause petition on the record in the trial court, but it appears that the learned Judge has considered the question as to the desirability of taking this document into evidence, under the provisions of Order XU Rule 27(c) of the Code of Civil Procedure. It is clear that the learned Judge on appeal has applied his mind as to the necessity of taking the certified copy of the show cause petition as evidence, and after considering this matter, the learned Judge has stated that the document would also enable the Court to come to a finding on the question whether or not the Sasaram Municipality was a necessary party to the suit. At the stage at which the learned Judge was considering this matter, nothing more could have been said by the learned Judge in this context The circumstances were such that the court of appeal could invoke the provisions of Order XLI Rule 27(c) of the Code. Under the circumstances, in my opinion, the appropriate order that the Court of appeal should have passed, after taking into evidence Exhibit 5, was to ask the trial court to take into evidence the certified copy of the show cause petition, after giving reasonable opportunity to the defendant to adduce evidence in rebuttal and then to send the document as additional evidence to the Court of appeal. That is to say, the Court of appeal should have taken recourse to Order XLI Rule 28 of the Code of Civil Procedure, without setting aside the judgment and decree of the trial court. The judgment of the learned Judge on appeal must, therefore, be set aside. The learned Judge should now send back the records of the case to the trial court for taking into evidence the show cause petition produced by the plaintiffs and any other evidence, oral and documentary, that the defendant chooses to bring on the record, in rebuttal. After the trial court sends back the additional evidence taken on behalf of the parties, the appellate court should then proceed to decide the appeal, afresh, on the materials which are already on the record and on those which may be brought on the record hereafter.