R NARAYANASWAMI AIYAR Vs. VADAMBAL AMMAL

JUDGEMENT

(1.) THE first point raised in this second appeal is that the learned District Judge had no jurisdiction to send the case down to the Sub-Court for sending up revised findings. THE Subordinate Judge who tried the case in the first instance refused a short adjournment to the plaintiff and closed the case. On appeal the District Judge held that the Subordinate Judge could have granted the adjournment prayed for in the circumstances of the case and he sent the case down to the lower Court to take the evidence adduced by the plaintiff and any evidence adduced by the defendants and to submit revised findings. On receipt of the revised findings the District Judge disposed of the case. Mr. Sankara Iyer's contention is that the District Judge had no jurisdiction to call for revised findings in the case and he relies upon a recent decision of a Bench of this Court in Venkatarama Iyer V/s. Sundaram Iyer (1). If the appellate Court want additional evidence to be taken it must take the evidence and send it up. Where a trial is defective by reason of the trial Court excluding relevant evidence or by not giving an opportunity to the one party or the other to adduce all the evidence it can or where the trial Court shuts out evidence improperly and disposes of the case, the question is whether the appellate Court can ask the trial Court to take the evidence shut out or to give an opportunity to the party which had been deprived of it to adduce all the evidence it wants and then consider the whole evidence and send up revised findings. I think in a case where the trial is defective by reason of relevant evidence having been shut out or by refusal of an adjournment which should have been granted to enable the party to adduce all the evidence or for any other reason, the appellate Court can ask the lower Court to take evidence shut out, or to give the party, which had not the opportunity to adduce all its evidence, opportunity to adduce evidence, and to record a finding on the evidence so taken. THE appellant could not complain if the learned Judge in asking for revised findings had at the same time set aside the decree of the lower Court. THE mere fact that he has not set aside the decree of the lower Court, I do not think, in any way takes away the jurisdiction he has to set aside the judgment and direct the lower Court to take evidence and record fresh findings. Here the learned Judge has practically asked the lower Court to retry the case. Can it be said that his not setting aside the judgment of the lower Court has in any way taken away his jurisdiction to set aside all the findings of the lower Court and directing a re-trial. In Venkatarama Iyer V/s. Sundaram Iyer (1) the facts were different. As I read the judgment it appears that the appellate Court wanted some additional evidence to be taken. THE law is that the appellate Court should take the evidence or direct the Court from whose decree the appeal is preferred or any other subordinate Court to take such evidence and send it up to the appellate Court. That is Rule 28, Order 41. In that case the Subordinate Judge who wanted additional evidence, instead of taking the evidence himself or asking the lower Court to take evidence and send it up, called for revised findings in the light of the evidence directed to be taken which he had no power to do. I find this point against the appellant.

(2.) THE next point urged is that the case found by the Judge is opposed to the averments in para. 8 of the plaint. THE real question in this case is whether the suit properties were purchased in the name of the defendant's father benami for the plaintiff's husband? In para. 8 the plaintiff says that if any portion of the consideration came from the defendant's father she is willing to give credit for it. Mr. Sankara Iyer urges that, in asmuch as the plaintiff in a way admits that a portion of the consideration came from the defendant's father, the learned Judge ought to have found what the amount was. THE defendant's case was that his father paid the whole of the consideration, and he did not place the materials before the learned Judge as to how much of it came from the plaintiff's husband and how much from his father. He was for having the whole of the property or none at all. That being so, he cannot now complain that the learned Judge did not record a finding as to how much came from the defendant's father. THE learned Judge has carefully considered the evidence on record and Mr. Sankara Ayyar is not able to point out any misstatements of fact or misreading of the evidence. I, therefore, dismiss the second appeal with costs.