MADHU SUDAN SINHA Vs. KALI CHARAN SINHA

JUDGEMENT

(1.) The plaintiffs in this suit are the great-grandsons of one Tularam Sinha who, as they allege, was the brother of Khosal Sinha. Khosal died many years ago leaving a widow named Bhagabati and a son named Shibram. Shibram himself died in 1836 leaving a widow, Chhaya Kumari, a mere child, whom he had married as his second wife. There also survived him Fudan Kumari, his daughter by his first wife, and her husband Chet Lall. They had issue, two sons then alive, Ram Lal and Behary Lal, and several daughters born subsequently. Behary Lal died in 1837 and Ram Lal in 1868. Of the daughters Golap Sundari became the mother of a son named Nilkantha, the father of the defendant No. 1, Kali Charan Sinha. Annapurna also had a son whose widow is the defendant No. 2. The defendant No. 3 is in possession of a property, Taraf Raghab Bati (No. 13 in the schedule of the plaint), under colour of a conveyance executed by Chhaya Kumari and Nilkantha Singh in 1887.

(2.) A genealogical table prepared by the plaintiffs is attached to the plaint. The plaintiffs claim title as reversionary heirs of Shibram on the death of Chhaya Kumari, which occurred in 1899, to three-fourths of the properties specified in the schedule. The title to the remaining fourth is said to be in another great-grandson of Tula Ram who is not represented on the record. There is no dispute as to the descent of the plaintiffs from Tularam. The two principal contentions raised in answer to the suit were, firstly, that Tularam was not the brother of Khosal, and secondly, that in accordance with an alleged verbal permission given by Shibram, Chhaya Kumari in the year 1872 adopted Nilkantha as his son. The learned Subordinate Judge found against the plaintiffs on both these questions and by his judgment and decree, dated the 13th August 1913, dismissed the suit. The plaintiffs have appealed.

(3.) At the hearing before us, learned Counsel for the appellants stated that as regards the relationship between Khoshal and Tula Ram he would urge merely that the suit should be remanded to the Court below for the taking of further evidence, on the grounds that evidence, oral and documentary, bearing on this question had been improperly excluded at the trial. He referred to the orders, dated the 14th and the 17th July 1913, in the order-sheet. The order sheet shows that the suit was instituted on the 18th November 1911. On the 20th April 1912, permission was given to the plaintiffs, who, it is said, are mostly serving as peons, that is in comparatively humble and ill-paid posts, to sue in forma pauperis, a privilege which has also been extended to them in appeal. Issues were framed on the 7th September 1912 and the 8th October was fixed for the hearing of the suit on which date the parties were directed to produce their documentary evidence. On that day nothing was done. The suit was adjourned again and again at the instance of one or the other of the parties or both. The dates successively appointed were the 12th November and 12th December 1912, and the 21st January, 24th February, 7th April, 7th May, 9th June and 10th July 1913. On the last mentioned date the case was opened and adjourned to the 14th July, when the hearing was resumed and continued practically de die in diem till the conclusion. Now the rejected documents ought to have been produced on the 8th October 1912, but were not in fact produced till the 24th February 1913, a delay which would allow of ample time for their manufacture. The excuse given was that the original plaintiff No. 1, the elder brother of the present plaintiff No. 1, had died on the 4th September 1912 and the documents had been in his custody. The Subordinate Judge directed that the documents "should be kept with the record" leaving the question of their admission to be decided at the trial. On the 14th July 1913 he refused to accept them, stating that the explanation of delay was unsatisfactory. He also said that a list should have been attached to the plaint in which the documents should have been specified. It was suggested that he was wrong in thus applying Rules 14 and 18 of Order VII, because Sub-rule (2) of Rule 18 expressly excepts "documents produced for cross examination of the defendant s witnesses or in answer to any case set up by the defendant." The documents in question have, however, been translated and printed, and it appears it was proposed to use them in aid of the plaintiffs own case that Tularam was Khosal s brother. In any case the Subordinate Judge might have applied Rules 1 and 2 of Order XIII. As the plaintiffs intended, if they could, to prove the documents as part and parcel of the evidence in support of their claim, they intended to rely on them and under Order XIII, Rule 1, the parties or their Pleaders shall produce, at the first hearing of the suit, all the documentary evidence in their possession or power, on which they intend to rely... and all documents which the Court has ordered to be produced." Under Rule 2, no documentary evidence... not produced under rule I shall be received at any subsequent stage of the proceeding unless good cause is shown to the satisfaction of the Court for the non-production thereof: and the Court receiving any such evidence shall record the reasons for so doing." Rule 1 speaks of the first hearing of the suit but no difficulty arises as to that, because the word hearing" is one of those comprehensive words which may be used with a more or less extensive meaning according to the context. Order XVII, Rule 1, which gives the Court power to adjourn the hearing of a suit draws a distinction between the hearing of the suit and the hearing of evidence. There was a hearing of the suit if not on the day when issues were settled, at any rate on the 8th October 1912, though the hearing resulted only in an adjournment. There is no doubt, therefore, that under the Code the Subordinate Judge had a discretion to refuse to accept these documents and on the question whether the delay in producing them was or was not unreasonable, he, having the parties and their Pleaders before him, was in a better position to judge than we are. We ought not to interfere especially in view of the terms of Rule 2 of Order XIII, unless we are satisfied that the Subordinate Judge exercised his discretion improperly or capriciously, and we are not so satisfied.