PARAPPIL ASSYA UMMA Vs. PALOONTEAKATH MOOSSA

JUDGEMENT

(1.) This appeal arises out of a suit for maintenance by a Mahomedan wife who is now a widow. The defence was that she was divorced in 1919 by her husband and the evidence was mainly directly to the factum of divorce. There was a remand by the District Judge who first heard the appeal for a decision on the question, "what is the school of law governing the parties" and fresh evidence was allowed on this question. When the case was re-heard by the trial Court both parties agreed that they were governed by the Shafi-Sunni law and tie trial Court reiterated the previous finding that there was no divorce. In the course of the judgment he found it necessary to make observations regarding the failure of the defence to examine the Kazi alleged to have received the divorce letter and to have maintained the register of divorces and he observed that Ex. II, a register produced by the Mukri of the mosque, did not appear to be a regular book kept by the Kazi. When the matter came up again in appeal, there was a fresh District Judge who in the course of arguments appears to have decided to permit the defendants to examine the Kazi. On 15 November 1934 the B diary contains the following entry : "Arguments closed for the present. Adjourned to 6 December 1934 to enable the appellants to examine Kadiar." On the same day the defendants presented a petition supported by an affidavit requesting that the Kazi be summoned and examined, the only reasons given being that the Kazi was cited in the lower Court as a witness to prove the fact of divorce, that he did not appear in person and sent certain documents through the Mukri that his evidence was most material and that he could not be examined in the lower Court as he did not appear in person and the evidence on record therefore was to some extent incomplete. It does not appear that any notice of this petition was given to the plaintiff and the order consists of the one word "allowed" written in the handwriting of somebody also, presumably a clerk, and initialed by the learned District Judge. The judgment contains the following reference to the admission of this further evidence in appeal: In the course of the arguments it became clear that the most material evidence regarding the factum of divorce could be furnished only by the Kazi, to whom the deceased Athermankutti is said to have communicated a notice of the talak. In these circumstances the prayer of the learned Advocate for the appellants that the Kazi should be summoned and examined was granted.

(2.) Then later on the learned Judge observed: His evidence fills up the serious gaps that existed in the previous evidence produced by the defendants and leaves no room for doubting that Ex. 2 as well as the new registers now marked Exs. 2(a) and 2(b) are genuine documents kept under the direction and supervision of the Kazi.

(3.) It is contended for the plaintiff, who is the appellant here, that the judgment of the learned District Judge is vitiated by the irregular admission of fresh evidence in appeal contrary to the provisions of Order 41, Rules 27 to 29, Civil P.C. It is to be noted that the fresh evidence admitted by the learned District Judge consisted not only of the oral evidence of the Kazi but also of two documents, for the admission of which there is no specific prayer or order or any reason given other than the passage from the judgment just quoted. Order 41, Rule 27 provides for the admission in appeal of documents wrongly rejected by the trial Court - a provision which has no application here - and also provides that further evidence may be admitted 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. Rule 29 provides that where additional evidence is directed or allowed to be taken the Appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the point so specified. These provisions have been the subject of many decisions, one of the most authoritative being the case in Parsotim Thakur V/s. Lal Mohar Thakur (1981) 18 A.I.R. P.C. 143 where the Judicial Committee lays down the principles which should guide an Appellate Court in admitting or refusing to admit fresh evidence in appeal. Their Lordships point that such evidence can be admitted under Clause (1)(b) of Rule 27 only when the Appellate Court requires it or finds it needful. It is also pointed out that the legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent. They add that the power so conferred ought to be very sparingly exercised and that one essential requirement is that the new evidence should have a direct and important bearing on a main issue in the case; and they observe that whenever the Appellate Court adopts the procedure laid down under Rule 27 it is bound to record its reasons for so doing and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified.