DURGA PRASAD Vs. LALA JAI NARAIN

JUDGEMENT

(1.) THE sole ground of appeal in this case is that the lower appellate Court erred in deciding the appeal without taking additional evidence and that this irregularity prejudiced the appellants case. THE suit was for the price of stock in trade alleged to have been sold by the plaintiffs to the defendants. Some of the defendants did not dispute the claim but the appellants, Durga Prasad and Sital Prasad, filed written statements in which they alleged that no cloth was received in the defendants shop nor had the plaintiffs any shop for the sale of cloth at any time. THE Court of first instance decreed the plaintiffs claim, and an appeal was thereupon preferred by the defendants-appellants. During the pendency of the appeal, an application was made to the lower appellate Court to have certain documents including Railway receipts and certain account books sent for. This application was ordered to be put up with the record, no order having been made at the time upon the application. THE learned District Judge, however, considered the application as is clear from the language of the judgment. In his judgment he says: "Appellants take up a peculiar position. First, they say that they could put up a better defence than was actually made if they were now allowed to import fresh, evidence into the case. Secondly, they take exception to the character of the account books produced, apparently on account of their size." He did not allow the defendants to produce any further evidence, clearly believing that the defence was not a genuine and bona fide defence. He dismissed the appeal and confirmed the decree of the Court below.

(2.) THIS second appeal has been preferred, the sole ground of appeal being the alleged irregularity which we have already stated. The order under which an appellate Court is empowered to allow a party to produce additional evidence is to be found in Order XLI, Rule 27. That order expressly forbids the Court to allow additional evidence to be produced except in a case in which the Court below has refused to admit evidence which ought to have been admitted or the appellate Court itself requires any document to be produced or any witness to be examined, to enable it to pronounce judgment or for any other substantial cause. The learned District Judge in this case did not consider that any grounds had been shown sufficient to justify him in allowing the further evidence, referred to in the application of the defendants, to be adduced. He exercised his discretion in the matter and as it appears to us impliedly, if not expressly, refused the application. THIS being so, the question arises whether or not the" action of the Court below is such as would justify us in allowing a second appeal. We think not. A similar question was considered in the case of Ram Piare Lal v. Kallu 23 A. 121. In that case, one of us was a party to the judgment. It was there held that a refusal in the exercise of discretion to admit additional evidence given to the Court by Section 568 of the Code of Civil Procedure, 1832, which corresponds with Order XLI, Rule 27, was not an error or defect coming within Section 584 of that Code. In the judgment in that case, one of us remarked as follows: "Under Section 568 of the Code, a party to an appeal is not entitled to produce additional evidence in appeal as of right, but the Court may in its discretion admit additional evidence. Where the Court has exercised its discretion and in the exercise of its discretion has refused to admit additional evidence, it cannot be said that a substantial error or defect in procedure has taken place which affords a ground of second appeal under Section 584." THIS decision, which we are bound to follow, is conclusive against this appeal. The lower appellate Court did, we think, exercise its discretion and having exercised its discretion, no second appeal will lie. For these reasons, we dismiss the appeal with costs.