MUHAMMAD SIDDIQ Vs. MAHMUD-UN-NISSA BIBI

JUDGEMENT

(1.) This appeal is connected with Second Appeal No. 239 of 1915. The appeals arise out of suits for pre-emption. Having regard to certain matters which transpired during the litigation, it is necessary to set out the facts at some length. It appears that there were four sales. The first sale was made on the 6th of January, 1913. This was a sale in favour of Muhammad Siddiq (the appellant). The vendor was Musammat Abdul-un-nissa. The second sale was made on the 16th of March, 1913, in favour of Mahmud-un-nissa and Abdul-Wali by Musammat Bashir- un-niasa. The third sale was made on the 11th of October, 1913, in favour of the plaintiff Muhammad Siddiq by Abdul Wall and others. The fourth sale was of the 18th of January, 1914, in favour of Mahmud-un-niasa and Abdul Wali by Azmatullah. All four sales wore of shares in the same mahal in which none of the vendees wore previously co-sharers. The first persons to institute a suit were Musammat Mahmud-un-nissa and Abdul Wali, who sought to pre-empt the sale made in favour of Muhammad Siddiq. In this suit preemption was sought of both the sales in favour of the plaintiff. This suit was instituted on the 3rd of January, 1914. It was dismissed by the first court on the 31st of March, 1914, Muhammad Siddiq instituted his suits (out of which the present appeals arise) on the 9th of May, 1914. The suits were decreed by the court of first instance. Muhammad Siddiq based his claim on Muhammadan law. He alleged that, having become a co- sharer by virtue of the sale of the 6th of January, 1913, he was entitled to claim pre-emption against Mahmud-un-nissa and Abdul Wali and that he duly performed the conditions of the Muhammadan law as to pre-emption. In his plaint he did not specify the day when he made his demands, and the defendants in their written statement called attention to this fact, suggesting that particulars were purposely omitted to prevent them being able to meet the plaintiff s case by proper evidence. We may here mention that, whatever foundation there might have been for this suggestion, the defendants, although they had many opportunities, never demanded particulars from Muhammad Siddiq, nor asked the court to order that they should be furnished. On the 28th of October, 1914, after issues had already been framed and after the case had been before the court more than once, Muhammad Siddiq was examined, He there stated all the particulars of his demand, including the day (and the time; on which he received notice of the sale. All the plaintiff s witnesses were examined that day. The defendants had in court six witnesses, but the only witness whom they examined was the defendant Abdul Wali himself. Their other witnesses they exempted. They made no application to the court, even then, to postpone the hearing of the case to enable them to produce evidence to rebut the evidence given on behalf of the plaintiff. The case, however, was, for another reason, postponed until the 6th of November, when arguments were hoard; Judgment in favour of the plaintiff was delivered on the 9th of November, The defendants appealed to the learned District Judge, and on the case coming before him he made an order that he required Muhammad Siddiq to be examined "in order to enable him to pronounce judgement." He did not record any reason why additional evidence should be produced, He has, however, in his Judgment (which he subsequently delivered) given his reasons for calling Muhammad Siddiq. He there says: "After reading the records in the two cases and finding that the learned Munsif had largely accepted the evidence tendered to prove the demands in the two cases, because the plaintiff was a respectable pleader practising in his court, yet had not subjected him to any special examination to sift his evidence, I deemed it necessary, under Order XLI, Rule 27, to enable me to pronounce judgement, to examine Muhammad Siddiq myself."

(2.) We have gone through the evidence of Muhammad Siddiq in the court of first instance and we there find that he was examined and cross-examined upon practically all the matters on which the learned District Judge subsequently examined him (or rather cross-examined him).

(3.) Order XLI, Rule 27, is as follows: "The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court, But if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (6) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined. Wherever additional evidence is allowed to be produced by an appellate court the court shall record the reason for its admission."