TELIKICHERLA KANDALA SRIMANNARAYANA CHARYULU Vs. KOYAL KANDADAI BHAVANACHARYULU ALIAS MODALIANDAN SWAMULUVARU (DECEASED)

JUDGEMENT

(1.) The only ground on which the learned Subordinate Judge remanded the suit for a re-trial after framing additional issues is that contained in paragraph 5 of the judgment. He says: The evidence tendered by appellant in this Court is voluminous and consists of several very old documents and serious questions of custody, proof, admissibility and relevancy are hinted by the respondents. The appellate Court cannot continue the trial on these lines. I therefore remand the suit for fresh disposal in the light of the following directions. In my view the mere fact that evidence was tendered before the appellate Court would not1 justify any remand of the case. The powers of the appellate Court to admit additional evidence in appeal are contained in Order 41, Rule 27 of the Civil P. C. as amended by this Court. Under that rule, whenever additional evidence is allowed to be produced by an appellate Court, the appellate Court is bound to record reasons for its admission. In this case the appellate Judge has overlooked the plain provisions of the Code and has remanded the suit merely because the appellant has tendered evidence. Further he has also to consider Clauses (a), (b) and (c) of Rule (1) and find out whether a case is made out for admitting additional evidence. There is no consideration of this question nor is there any finding by the learned appellate Judge.

(2.) It is contended on behalf of the respondents that there was a consent memo. filed by both parties on the 19 September, 1945, that is on the very date on which the judgment of the learned Subordinate Judge was pronounced; but there is nothing in the judgment to show that the learned Judge remanded the suit because the parties consented to such a course. If the learned Judge intended to remand the case because the parties consented to such a course then he should have confined the trial after remand to the conditions specified in the memo. signed by the advocate for the respondents and the advocate for the appellant. The terms contained in the memo, are: (1) That the document tendered in the appeal by the appellant in I.A. No. 737 of 1943 may be received subject to their proof, relevancy and admissibility. (2) That the further evidence in the trial Court be confined to the proof of the documents in the lower Court by the plaintiff and their rebuttal by the respondents. (3) That the appellant pays all the costs incurred by the respondents up till now in the lower Court and the appeal irrespective of the result of the suit. The judgment and decree of the learned Subordinate Judge on appeal does not give any indication that the learned Judge intended to follow the terms of the consent memo. In these circumstances it is unnecessary to go into the question of the consent memo. In the result I allow the appeal, set aside the order of remand by the learned Subordinate Judge and direct the learned Subordinate Judge of Narasapur to restore the appeal to his file and dispose of it according to law. The respondents will pay the costs of the appellant in this Court. No leave.

(3.) C.R.P. No. 1425 of 1945.--The civil revision petition is filed in the alternative and it is unnecessary. Dismissed.