1. It has been argued, it is doubtful from the language of the honourable the Chief Justice, whether, under Section 353 *, Civil Procedure Code, he intended to frame and remit issues for trial, or under Section 355 merely to direct the Court below to take further evidence. We think it unnecessary to determine this point, because we are of opinion that in either view this appeal cannot be entertained.
2. There has been no judgment in the sense in which we construe that term in Clause 10 of the Letters Patent. There must be such a judgment on the part of all the learned and honourable Judges who may constitute a Bench as disposes of the suit on appeal before it. The learned Chief Justice has as yet recorded no such judgment, and to enable the Bench to do so, he has considered it necessary to obtain further materials.
3. Under the circumstances, we reject the appeal, and as the respondents have appeared, with costs.
When the evidence is *[Section 353:-When the evidence upon the record of the Lower
sufficient, the Appellate Court is sufficient to enable the Appellate Court to pronounce a
Court must determine the satisfactory judgment, the Appellate Court shall finally determine
case though the Lower the case, notwithstanding that the judgment of the Lower Court
Court has decided on other has proceeded wholly upon some other ground.]
?[Section 355:--It shall not be competent to the parties in an appeal to produce additional
evidence in the Appellate Court, whether of exhibits or witnesses;
When the Appellate Court but if it appears that the Lower Court refused to admit competent
may call for fresh evidence, evidence, or if the Appellate Court require any exhibits to be
produced or witnesses examined to enable it to pronounce a satisfactory
judgment, or for any other substantial cause, the Appellate Court may allow additional exhibits to be
received and any necessary witnesses to be examined, whether such witnesses shall have been previously
examined in the Court below or not provided that, whenever additional evidence is admitted by an Appellate
Court, the reasons for the admission shall be recorded on the proceedings of such Court.]