NARENDRA NARAIN ROOJ Vs. JNANADA DASSI

JUDGEMENT

(1.) The plaintiff is the appellant in this case. The suit was for declaration of title and recovery of possession. In support of his title, plaintiff relied on a mortgage, a kobala and a kabuliat. His case was that the property in suit being a house in the town of Suri belonged to one Kirtibas Haldar, and that Kirtibas first mortgaged and then sold it to the plaintiffs, and that thereafter plaintiff let it to Kirtibas mother, Nani Bala, for 6 months. Kirtibas afterwards died, and his mother not having given up the house on the expiry of her lease, plaintiff brought this suit. He made both Nanibala and Kirtibas widow, Jnanada Dasi, defendants, as both were in possession. The mother died pending the suit, and the suit was contested by the widow (defendant 2) alone. The defence was that the mortgage, the kobala and the kabuliyat were all benami transactions, and that these had been put through by Kirtibas to defraud some creditors in Calcutta. The trial Court overruled the defendant's contention and held that the plea of benami had not been made out. The plaintiff's title was declared, but the prayer for khas possession was refused as the learned Subordinate Judge held that notice was necessary and such notice had not been given. The defendant appealed, and on appeal the learned District Judge reversed the decision of the trial Court. He held that the transactions relied on by the plaintiff were all benami, and in that view dismissed the suit.

(2.) The plaintiff has appealed to this Court, and his main contention is that in coming to his finding the learned District Judge had relied on additional evidence which should not have been admitted. The question in this appeal therefore relates to the admissibility of this additional evidence. It will be seen that the judgment of the trial Court was given on 12th December 1932 and the appeal in the lower appellate Court was filed on 1 February 1933. The appeal was not taken up for hearing until 1 June 1934. On this date, the defendant- appellant Jnanada Dasi applied for permission to put in a number of documents by way of additional evidence which she maintained would be sufficient to repel the finding of the trial Court. In her petition she stated that the documents should have been filed before, but that being an illiterate woman she could not properly instruct her pleader regarding the existence of these documents in time. Although in her petition the defendant limited her prayer to the admission of these documents only, and that for the specific purpose indicated, it appears that at the hearing the prayer was enlarged so as to embrace the taking of further additional evidence "on some other points on the record" as well. The application was opposed by the plaintiff, but the learned District Judge made the order asked for and sent down the case to the trial Court for "the recording of such additional evidence as may be adduced by either party". In making this order he appears to have been largely influenced by the consideration that the appellant was a poor woman, and that owing to her poverty and some other reason her case had not been properly conducted in the Court below. He thought that it was "essential in the interests of justice" that the appellant should be given an opportunity to adduce additional evidence. The additional evidence which was let in consequence of this order was both oral and documentary. The documentary evidence included an extract from the Record of Rights, a number of rent receipts showing payment of rent for the property in suit by Kirtibas to the superior landlord and some landlord's papers.

(3.) We have no difficulty in holding that this additional evidence ought to be excluded from the record altogether. The order of the learned District Judge was presumably made under the provisions of Order 41, Rule 27, Civil P.C., but clearly it was against both the letter and the spirit of this Rule. The purpose for and the circumstances in which additional evidence may be admitted under this Rule have been now put beyond all doubt by the pronouncements of the Judicial Committee in more than one case. The ordinary rule is that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate Court. But exceptions have been engrafted on this general rule by Order 41, Rule 27, Civil P.C. These exceptions are set out in Clauses (a) and (b) of Sub-rule 1, of this Rule. Clause (a) has no application to the present case as there is no question of the trial Court having refused to admit evidence which ought to have been admitted. It is not the defendant's case that the documents had been produced by her in the trial Court, though at a late stage, and that they were not admitted by the trial Court, although there was good cause for their non-production at the first hearing. In other words, it is not her case that the trial Court had wrongly refused to exercise its discretion under Order 13, Rule 2. Her prayer for the admission of the additional evidence could be therefore justified, if at all, only under Clause (b) of Order 41, Rule 27(1). C1. (b) however permits such additional evidence to be let in only if the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.