1. The plaintiff claiming to be a purchaser of the suit properties from one Shivnath -- daughter's son of one Bhika -- filed suit No. 59 of 1951 in the Court of the Second Joint Civil Judge, Junior Division, at Ahmednagar, against the defendants who were respectively purchasers of the same property from the widow of Bhika.
The plaintiff claimed that Bhika who died on 7-12-1934 had made a will whereby he had devised the suit properties in favour of Shivnath, and Shivnath had become the owner of those properties and that he claimed a title derived from Shivnath. The suit was resisted by the defendants. They contended that Bhika had not made a will.
2. Before the learned trial Judge evidence was sought to be led to prove the will dated 7-12-1934. The learned trial Judge held that execution of the will was not proved according to the requirements of Section 63, Succession Act and therefore Shivnath could not be deemed to have acquired title to the property of Bhika under the will. On that view of the case the learned trial Judge dismissed the plaintiff's suit.
An appeal was filed in the District Court at Ahmednagar by the plaintiff against the decree passed by the trial Court. In appeal the learned District Judge observed in the course of his judgment that on the evidence as it stood execution of the will was not proved according to law, but he was Inclined to take the view that the plaintiff should be given another opportunity to prove the Will.
It was contended on behalf of the plaintiff before the District Court that there was no denial whatever in the written statements of the first defendant of the due execution of the will that the will was exhibited in evidence before the hearing commenced and that the execution of the will was not seriously challenged in the Court of the first instance, and hence the plaintiff should be given another opportunity to enable him to prove the will as required by the law.
The learned Judge observed that the Court dealing with the question of execution of a will was a 'Court of conscience' and could not allow the last wishes of a deceased testator to be thwarted by legal technicalities arising out of the negligence of the propounders of the will'. The learned District Judge therefore thought that it was a case in which another opportunity should be given to the plaintiff 'to offer proof of the execution of the will so as to satisfy the requirements of Section 63, Succession Act'.
The learned District Judge therefore set aside the decree passed by the trial Court and remanded the suit to the trial Court for retrial. In passing the order of remand the learned District Judge thought that ho was justified in relying upon the judgment of this Court reported in -- 'Vishnu Ramkrishna v. Nathu Vithal' AIR 1949 Bom 266 (A).
3. Now under the C. P. Code a litigant is not entitled to have a second opportunity to prove his case. Whatever may be the nature of his case, in the Court of first instance he must lead all the evidence in support of his case. If at the stage of appeal it is found that the Court of first instance has omitted to frame or try any issue or to determine any question of fact which appears to the appellate Court essential to the right decision of the suit on the merits the appellate Court may, if necessary, frame issues and refer the flame for trial to the Court of first instance after taking such evidence as the Court directs.
After the finding of the trial Court on such issues is received, the appellate Court may deal with the matter on the merits. If the Court finds that the Court of first instance has refused to admit evidence which ought to have been admitted, or that the appellate Court itself requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause the appellate Court may allow such evidence or document to be produced or witness to be examined.
Whether additional issues are required to be decided as provided under Order 41. Rule 25, or whether additional evidence is required to be taken as provided under Rule 27 of Order 41, the appellate Court must keep the appeal on its file and should proceed in the manner indicated by Rules 25 and 27 of Order 41 and within the strict limits permissible by those provisions.
The power to remand a suit for hearing is conferred by the C. P. Code under Order 41, Rule 23, where the Court of first instance has disposed of the suit on a preliminary point. The C. P. Code has not conferred an unrestricted or unfettered power of remand upon appellate Courts.
It is true that in a proper case under Section 151 of the C. P. Code where there has been no real trial of the suit it may be open to a Court of appeal to exercise its power in the nature of remand, but such power can only be exercised where the Court of appeal finds it necessary for the ends of justice to prevent abuse of the process of Court.
If a party has had an opportunity of leading evidence and has negligently failed to avail himself of that opportunity, he cannot claim another opportunity to be given to him to lead evidence. The procedure followed by the learned District Judge was in my view erroneous.
He should have considered the evidence on the record and he should then have considered the question whether this was a case in which additional evidence under Rule 27 of Order 41 of the C. P. Code should be allowed to be led, and if he was satisfied that this was a case in which additional evidence should be allowed to be led, he should have proceeded either to take that evidence himself or should have directed the Court of first instance to take evidence and thereafter he should have considered even the entire evidence in the case.
The case in AIR 1949 Bom 266 (A), is not inconsistent with the view that I have indicated above. That was a case in which the Court observed:
'We are dealing with the case of a will and we must approach the problem as a Court of conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a Court of conscience would not permit such a thing to happen. x x x x
Therefore this is clearly a case where the Court would require additional evidence which is available in order to satisfy itself and satisfy its conscience whether in fact the will was duly executed or not.'
Evidently the Court acted in that case under the provisions of Order 41, Rule 27 of the C. P. Code.
4. The order passed by the learned District Judge remanding the suit to the Court of first Instance for retrial is therefore set aside; and it is directed that the learned District Judge do hear the parties and consider whether the case before him is one in which in order to deliver Judgment or for other sufficient cause it is necessary that additional evidence should be allowed to be led; and if he is so satisfied he may direct additional evidence to be taken and therefore he may hear and dispose of the appeal according to law. Costs of the appeal will be costs in the District Court.
5. Order set aside.