SETH KUNJILAL MANAKCHANDJI BHAWASAR Vs. SHANKAR NANURAM

JUDGEMENT

(1.) THIS is an application for revision against an order dated 10th April 1942 passed by Mr. S.A.M. Jafry, Additional District Judge, Khandwa, in Civil Appeal No. 13-A of 1942. By this order the Additional District Judge, Khandwa, permitted the non-applicant, presumably under Order 41, Rule 27, Civil P.C., to adduce additional evidenoe. The plaintiff non-applicant instituted a suit against the defendants-applicants for recovery of damages and for a permanent injunction. The plaintiff alleged that the office of priest of the whole Bhaosar community of the town of Burhanpur had been held exclusively in the family of the plaintiff for several generations and that he was the present incumbent of the post. He claimed a declaration that he alone was entitled to officiate at the religious ceremonies performed by the members of the Bhaosar community, and that defendants 1 to 4 acting as Panchas of the Bhacsar community, without any reason or cause stopped the plaintiff from officiating as such priest and appointed defendants 5 to 6 to officiate in his place. This, it was alleged, had resulted in loss to him to the extent of Rs. 218-80, and he therefore claimed that loss together with an in junction against the defendants. The claim was denied by the defendants, and the suit was eventually, after a long contest, dismissed by the trial Court. The plaintiff went up in appeal against the decision.

(2.) THE appeal was filed on 23rd August 1941 in the Court of the District Judge, Khandwa. The District Judge could not hear the appeal for some reason or another, and he transferred it to the Court of the Additional District Judge on 9th March 1942. It was thereafter fixed for hearing on 11th March 1942; but as the non-applicant's counsel was not ready to proceed with the case it was adjourned to 31st March 1942. On this date the non applicant filed an application for permission to, adduce additional evidence. It was opposed by the applicants. In the application for permission to adduce additional evidence the non-applicant plaintiff stated that he wanted permission in order to prove the copy of the will filed by him and to substantiate the evidence of the Bhat examined by him. He further stated that the testator and the attesting witnesses were all dead and that the plaintiff was the only person who could have sworn to the due execution as the will was executed in his presence, and that due to a bona fide mistake on the part of counsel relevant questions regarding the will had not been put to the Witness and consequently the will remained to be proved. As for the evidence of the Bhat, it was stated that the plaintiff was not aware whether the books produced by the Bhat were copies or origitnals; he therefore wanted to produce the widow of Punamchand Bhat to produce the originals if she had any. On these grounds the plaintiff asked to be allowed to adduce additional evidence. In the grounds of appeal filed before the District Judge ground No. 6 related to this will and the books produced by the Bhat, and is to the following effect

(3.) THE lower appellate Court in its order dated 10th April 1942 admits the force of the contentions of the defendants inasmuch as it is stated therein that it is true that parties should not ordinarily be permitted to fill up gaps at the appellate stage; but the Judge proceeds to state that in this case it was simply the misfortune of the plaintiff that he could not adduce the evidence which was then sought to be given, that his grounds were not wholly unsubstantial, and that the appellate Court had very wide powers to call for additional evidence which would help the justice of the case. He then quotes Gopika Raman Ray v. Atal Singh A.I.R. 1929 P.C. 99 Indrajit Pratap Bhadur Sahi v. Amar Singh A.I.R. 1923 P.C. 128 Andiappa Pillai v. Muthukumara Thevan 36 Mad. 477 Ambuja Ammal v. Appadurai Mudali A.I.R. 1916 Mad. 816 and Chhatra Kumari v. Mt. Parbati as authorities which enabled him to permit a party to adduce further evidence. Relying on these authorities he permitted the appellant to adduce additional evidence and ordered the appellant to pay a sum of Rs. 20 to the respondents as costs, and fixed the case for 22nd June 1942. Feeling themselves aggrieved by this decision the defendants-applicants have filed this application for revision.