1. This is a case of considerable difficulty, because it is certainly not explicitly provided for by the Code of Civil Procedure. There was one issue, and one only, in the case, and that was whether or not a certain deceased Hindu had, up to the time of his death, continued to be a member of a joint Hindu family. The parties appeared before the Munsif and the plaintiff produced a quantity of documentary evidence which was admitted and acted upon by the Judge. The plaintiff had also present in Court to the knowledge of the Court a number of witnesses, whose oral evidence he was prepared to tender had it been necessary. The learned Munsif was satisfied with his own construction of the documentary evidence, and passed a formal order that it was unnecessary to have oral evidence upon either side. So far the plaintiff, seeing that the Munsif was prepared to decide it in his favor, should not have suffered injury; but the Munsif's decisions are appealable, and, except under the circumstances specified in Section 568 of the Code of Civil Procedure, he would be excluded from adding as a matter of right such evidence as had been tendered before and admitted by the Munsif. The defendant was clearly wronged, because be certainly ought to have had a hearing for his witnesses before the Munsif passed a decision against him. He might fairly say--'My case has not been tried at all,' and the plaintiff may very properly say--'My case has not been properly tried, in so far as I have not been allowed to put in oral evidence, which I was entitled to do in the case.' The matter passed to be appellate Court. It seems to me that the Munsif's action amounted to no trial at all. In the case of a formal, but wholly unreal trial and adjudication, there is not, as far as I am aware, any express power conferred upon this Court to compel him to perform his duty; but I cannot infer, having regard to the wide-reaching and most necessary duties imposed upon us as the highest judicial authorities in these provinces, that the. High Court would be stepping outside its duty in compelling the Munsif to the performance of his duties. There are cases to which my attention has been called, one decided by my predecessor, in which a case was sent back practically for a re-trial under circumstances which do not bring it within either Section 562 or Section 566 of the Code of Civil Procedure. There are cases which have been decided so lately as the present year, and which are reported in the Weekly Notes as having been decided by the learned Chief Justice, accompanied in one instance by a Judge now upon this Bench, and upon another occasion by another Judge. My brother Burkitt felt himself bound in the current year to apply a remedy in the cases which fall outside those sections of the Code of Civil Procedure to which I have referred. It seems to me that we must assume that the Code of Civil Procedure is not exhaustive. There are cases of misfeasance on the part of Judges below grosser than anything provided for in that Act. I decline to believe that those are cases where a High Court must fold its hands and allow obvious injustice to be done. In this case that which took place in the Court below seems to us the mockery of a trial, and when we come to the appellate Court we must confess that the treatment of the case, partly possibly by reason of the extreme defects which had characterized the hearing below, is very far from satisfactory. The appellate Court, it seems to us, ought not to have allowed 'itself to deal with the case upon the fragmentary materials before it, but ought, 'ex debito justitiae, to have required evidence other than unexplained papers before coming to its decision. It matters little in point of view of the decision at which we have arrived that the learned Judge should have formed wholly erroneous notions about the inferences to be drawn by the entry in the revenue papers of a Hindu woman's name. Oral evidence would have been a proper corrective for such a misconstruction as that. The observation, which we apply to the action of the Court of appeal as well as to the Court of the Munsif, is that we conceive that in this case trial on paper evidence only falls far short of what we understand to be a trial in a Court of Justice. The result is that I would quash the whole of the proceedings, both in the first appellate Court and in the Court of First Instance, and direct the Munsif to restore this case to his list and try it upon the merits according to law, admitting for the purposes of that trial all admissible evidence tendered by either party. I would allow this appeal without costs, because it is not clear that any of the parties is substantially to blame in this matter.
2. I concur in the order proposed by my learned brother and would only add that, notwithstanding the provisions of Section 564 of the Code of Civil Procedure, I do not see how any other course can be adopted in this case That the plaintiffs-appellants have suffered palpable injustice at the hands of the lower Courts is manifest. The Court of First Instance refused to hear their witnesses, not because it considered their depositions to be inadmissible, but because, having formed a strong opinion in favor of the plaintiffs on their documentary evidence, that Court considered it unnecessary to hear their witnesses. The Court of appeal, in what I am bound to say is in many ways a flippant and most unsatisfactory judgment, reversed the finding of the first Court on the only issue in the case, and remarked as to a point relating to that issue that the plaintiffs should have 'proved it like any other issue,' totally disregarding the fact that the plaintiffs had tendered evidence and that their evidence had not been put on record. This action of the lower Court did undoubtedly amount to a substantial error of procedure such as would allow of an appeal to this Court under Section 584 of the Code of Civil Procedure, and that error is the ground on which this appeal has been admitted. The difficulty we have felt is as to the way we should treat the appeal. It is not one to which the provisions of Section 562 of the Code of Civil Procedure apply. No preliminary point was decided by the lower Court and reversed by us in appeal, nor is it one in which we can remedy the defect of the lower Court under Section 566, as it is impossible to say that the Court below has omitted to frame and try an issue. Section 568 is also inapplicable, inasmuch as, sitting as a Court of second appeal in this case, we have no power to come to any finding of fact. Section 622 is also inapplicable, as this is an appeal and not an application for revision. Nor indeed would any application for revision be admissible. The case thus falls outside of all the sections of the Code which treat of the procedure to be observed in remanding a case or in procuring additional evidence in second appeals, and therefore, though I am most unwilling to go beyond the provisions of Section 564, still I am constrained to hold, concurring with my learned brother, that, ex debito justitioe, we are bound to make the order proposed by him.