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Gulam and ors. Vs. Haji Badrudin - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom336
AppellantGulam and ors.
RespondentHaji Badrudin
Excerpt:
practice - omission to examine witnesses--second appeal, objection on, on the ground of such omission. - - if the plaintiffs were contented, and by their conduct they must be deemed to have been so, to take their chance of having the decree of the subordinate judge confirmed on appeal on the evidence before the court, they cannot be heard afterwards to complain on second appeal that there was a material irregularity in the conduct of the case, on the ground that all their evidence was not before the appeal court......did not think it necessary to have the remaining ten witnesses of the plaintiffs examined. on appeal this circumstance was not brought to the notice of the court by the plaintiffs, as was the case in bapu v. shekh ahmad printed judgments for 1874 p.92 nor did the appellate court become aware of it by the judgment of the court below, as in hurish chunder ghose v. gopal chunder ghose 20 cal. w.r. civ. rul. 203 .2. under these circumstances, there is not, we think, sufficient reason, on second appeal, for setting aside the decree of the appellate court with a view to that evidence being taken. if the plaintiffs were contented, and by their conduct they must be deemed to have been so, to take their chance of having the decree of the subordinate judge confirmed on appeal on the evidence.....
Judgment:

Charles Sargent, C.J.

1. It appears that the Subordinate Judge having come to a clear conclusion on the evidence already before him in favour of the plaintiffs, did not think it necessary to have the remaining ten witnesses of the plaintiffs examined. On appeal this circumstance was not brought to the notice of the Court by the plaintiffs, as was the case in Bapu v. Shekh Ahmad Printed Judgments for 1874 p.92 nor did the appellate Court become aware of it by the judgment of the Court below, as in Hurish Chunder Ghose v. Gopal Chunder Ghose 20 Cal. W.R. Civ. Rul. 203 .

2. Under these circumstances, there is not, we think, sufficient reason, on second appeal, for setting aside the decree of the appellate Court with a view to that evidence being taken. If the plaintiffs were contented, and by their conduct they must be deemed to have been so, to take their chance of having the decree of the Subordinate Judge confirmed on appeal on the evidence before the Court, they cannot be heard afterwards to complain on second appeal that there was a material irregularity in the conduct of the case, on the ground that all their evidence was not before the appeal Court. It was their business to have brought that circumstance to the notice of the appellate Court, and not having done so, they cannot now, in our opinion, take the objection in order to have the chance of a second trial.

3. Decree confirmed with costs.


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