MOHESH CHANDRA SHAW Vs. BIPIN BEHARI KHAN

JUDGEMENT

(1.) The first point taken in this appeal is that certain additional evidence has been wrongly admitted by the lower Appellate Court. We have heard the learned Pleaders on both sides and we think this objection is maintainable and that in consequence the appeal must be remanded fora farther hearing. It appears that after the appeal was partly heard the learned District Judge allowed the appellant to file certain documents and ordered a relay of certain boundaries by a Commissioner. He states in. his judgment that "this was done on appeal at the request of the appellant in Order to check the previous maps." The only section of the Civil Procedure Code which provides for taking" further evidence in a Court of Appeal is Order XLI, Rule 27, and that rule requires "wherever -additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission." Here no reason has been recorded. In the well-known Privy Council case of Kessowji Issur v. G.I.P. Railway Co. 31 B. 381 : 9 Bom.L.R. 671 : 11 C.W.N. 721 : 6 C.L.J. 6 : 4 A.L.J. 461 : 17 M.L.J. 347 : 2 M.L.T. 435 : 34 I.A. 116 (P.C.) it. was held at page 390 that the Appellate Court had no jurisdiction to admit the additional evidence, that it was wrongly admitted and did not form part of the evidence in that appeal, and in the case of Gajadhar Prosad v. Musammat Lohia 35 Ind. Cas. 698 : 24 C.L.J. 457 it was held that the omission of the learned Judge to record any reason for, the admission of the additional evidence was alone a sufficient ground for allowing the appeal. It is contended on behalf of the respondent that both parties wanted this evidence, to be taken. This is, not clear from the order-sheet; but even if it were, it would not validate an order made without, jurisdiction.

(2.) It is not contended that it is stated in the judgment that the result of the enquiry that was ordered was unfavourable to the appellant before him and that the appeal was decided in his favour not on the basis bat in spite of this further evidence. It appears, however, from one part of the learned District Judge s judgment that he put some reliance on the Commissioner s relay, that is, the farther report that was submitted to him, in deciding in favour of the defendant who was the appellant before him. So we are unable to hold that the admission of this evidence did not affect the decision.

(3.) Whether the evidence was admitted under Clause (a) or Clause (b) of Sub-section (1) of Order XLI, Rule 27, Sub-section (2) requiring "reasons to be recorded is equally applicable. We must, therefore, allow this appeal, set aside the decree of the lower Appellate Court and send the. case bask to that Court for being re-heard. It will still be open to the learned District Judge, if sufficient grounds are made out for the taking of further evidence, to do so. Bat before doing so ha must strictly comply with the provisions of Order XLI, Rule 27, Civil Procedure Code. Costs of this appeal will abide the result.