Henry Richards, C.J. and Tudball, J.
1. This appeal is connected with Second Appeal No. 239 of 1915. The appeals arise out of suits for pre-emption. Having regard to certain matters which transpired during the litigation, it is necessary to set out the facts at some length. It appears that there were four sales. The first sale was made on the 6th of January, 1913. This was a sale in favour of Muhammad Siddiq (the appellant). The vendor was Musammat Abdul-un-nissa. The second sale was made on the 16th of March, 1913, in favour of Mahmud-un-nissa and Abdul-Wali by Musammat Bashir-un-niasa. The third sale was made on the 11th of October, 1913, in favour of the plaintiff Muhammad Siddiq by Abdul Wall and others. The fourth sale was of the 18th of January, 1914, in favour of Mahmud-un-niasa and Abdul Wali by Azmatullah. All four sales wore of shares in the same mahal in which none of the vendees wore previously co-sharers. The first persons to institute a suit were Musammat Mahmud-un-nissa and Abdul Wali, who sought to pre-empt the sale made in favour of Muhammad Siddiq. In this suit preemption was sought of both the sales in favour of the plaintiff. This suit was instituted on the 3rd of January, 1914. It was dismissed by the first court on the 31st of March, 1914, Muhammad Siddiq instituted his suits (out of which the present appeals arise) on the 9th of May, 1914. The suits were decreed by the court of first instance. Muhammad Siddiq based his claim on Muhammadan law. He alleged that, having become a co-sharer by virtue of the sale of the 6th of January, 1913, he was entitled to claim pre-emption against Mahmud-un-nissa and Abdul Wali and that he duly performed the conditions of the Muhammadan law as to pre-emption. In his plaint he did not specify the day when he made his demands, and the defendants in their written statement called attention to this fact, suggesting that particulars were purposely omitted to prevent them being able to meet the plaintiff's case by proper evidence. We may here mention that, whatever foundation there might have been for this suggestion, the defendants, although they had many opportunities, never demanded particulars from Muhammad Siddiq, nor asked the court to order that they should be furnished. On the 28th of October, 1914, after issues had already been framed and after the case had been before the court more than once, Muhammad Siddiq was examined, He there stated all the particulars of his demand, including the day (and the time; on which he received notice of the sale. All the plaintiff's witnesses were examined that day. The defendants had in court six witnesses, but the only witness whom they examined was the defendant Abdul Wali himself. Their other witnesses they exempted. They made no application to the court, even then, to postpone the hearing of the case to enable them to produce evidence to rebut the evidence given on behalf of the plaintiff. The case, however, was, for another reason, postponed until the 6th of November, when arguments were hoard; Judgment in favour of the plaintiff was delivered on the 9th of November, The defendants appealed to the learned District Judge, and on the case coming before him he made an order that he required Muhammad Siddiq to be examined 'in order to enable him to pronounce judgement.' He did not record any reason why additional evidence should be produced, He has, however, in his Judgment (which he subsequently delivered) given his reasons for calling Muhammad Siddiq. He there says: 'After reading the records in the two cases and finding that the learned Munsif had largely accepted the evidence tendered to prove the demands in the two cases, because the plaintiff was a respectable pleader practising in his court, yet had not subjected him to any special examination to sift his evidence, I deemed it necessary, under Order XLI, Rule 27, to enable me to pronounce judgement, to examine Muhammad Siddiq myself.'
2. We have gone through the evidence of Muhammad Siddiq in the court of first instance and we there find that he was examined and cross-examined upon practically all the matters on which the learned District Judge subsequently examined him (or rather cross-examined him).
3. Order XLI, Rule 27, is as follows: 'The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the appellate court, But if the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (6) the appellate court requires any document to be produced or any witness to be examined to enable it to pronounce judgement, or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined. Wherever additional evidence is allowed to be produced by an appellate court the court shall record the reason for its admission.'
4. In numerous cases it has been pointed out how slow the courts ought to be in allowing the production of additional evidence in the appellate court. The cases on the subject will be found in Messrs, Woodroffe and Ameer Ali's work on the Code of Civil Procedure, page 1268. In the present case the witness, as already stated, had been already a witness in the court below, had been examined at some length and cross-examined at great length. There was no gap in the evidence or new matter about which it was necessary be examine him. The learned District Judge merely cross-examined him on his previous evidence. It seems that Muhammad Siddiq was sitting in court near his pleader, and that the learned District Judge, finding he was there, thought that he might be able to get to the bottom of the matter by cross-examination. We have not the smallest doubt that the learned District Judge's intentions were the best. At the same time we have no hesitation in saying that the provisions of Order XLI, Rule 27, Clause (b) were never intended to be exercised under circumstances like those we are now dealing with. Furthermore, the learned Judge seems to have mixed up the evidence in the two pre-emption suits. The property in each of these suits was different, the sales were different and some of the witnesses were different. One ay have been true and the other false, or both may have been true and both false. But the cases were separately tried and ought to have been separately disposed of. The view which the learned Judge took in one case appears, practically speaking, to have caused him to reject the evidence in the other case. We think Muhammad Siddiq was prejudiced by the action which the learned Judge took. It was his duty (unless he was justified in calling additional evidence) to decide each case upon the evidence as it stood. The fact that he took upon himself to call Muhammad Siddiq and to cross-examine him seems to have to a large extent led him away from the consideration of the evidence that was already on the record. For example, he seems largely to have forgotten that the plaintiff's evidence in the first pre-emption suit was supported by his brother and one other witness, and, but for the statement of one witness called on behalf of the defence, stood undoubted. There was just as much reason for recalling the other witnesses for the plaintiff for cross-examination as for calling the plaintiff. In fact it would have been much fairer to the plaintiff, if, having recalled the plaintiff for cross-examination, he had recalled all the witnesses. If he had done so, the learned Judge would then have been in a position to judge of the plaintiff's case as a whole rather than on the unfavourable impression produced by the sudden cross-examination of Muhammad Siddiq about matters which had occurred two years before, la this connection we ma}'add that we think that the action of the learned Judge in calling the plaintiff, was a little calculated to make the latter nervous. The learned Judge's action Indicated that he doubted the truth of the plaintiff's evidence. We think that the plaintiff might have felt nervous even if he had in the first instance told the truth. If the learned District Judge had decided the case as a court of first instance, Muhammad Siddiq won id have had the right of an appeal to another court. The District Judge was nominally deciding the case as a court of appeal when to a very large extent he wan basing Ida Judgment upon evidence which he was taking himself. Under all the circumstances of the case we think that the ends of justice require that we should sot aside the order of the learned District Judge. We further think that it would not be fair either to the learned Judge, or to the parties, that this case should be remanded to him for decision. It would mean useless expense and protracted litigation. We, therefore, propose to dispose of the case ourselves.
5. We have been carefully through the evidence and we see no reason to differ from the view taken by the learned Munsif, who had the advantage of seeing and hearing the witnesses. It is suggested that it is remarkable that the plaintiff waited so long before instituting the suit for pre-emption. One explanation of this would be that if Mahmud-un-nissa succeeded in her suit the plaintiff would have no right of pre-emption and the plaintiff waited till the decision of this suit. It has also been suggested that it was curious that the plaintiff never made written mention of the fact that he had claimed pre-emption under the Muhammadan law and made the demands. If the plaintiff had sent a written communication in which he made no mention of his having complied with the Muhammadan law his letter would be open to the comment that he had not complied. If on the other hand reference was made in such written communication to the claim under the Muhammadan law and the due performance of the talabs, it is almost certain that it would have been suggested against him that he wrote the letter pesh bandi because he was conscious that he had not made the demands according to Muhammadan law. We do not think that any legitimate inference can be drawn against the plaintiff because he did not follow up his demand by a written communication. It is said that he was very vague about the day upon which he heard of the sale by Bashir-un-nissa. If the plaintiff had been making an absolutely false cane it would seem pretty certain that he, a pleader, would have made quite sure that there should be no mistake about this when he came to give his evidence. He could safely rely upon his own brother to support him in detail if the brother was willing to support him in a false case. It is true that the plaintiff did not give the exact date, but he fixed it by saying that it was the day his brother told him that the document was being registered. The brother in his dire it evidence made some confusion between the execution of the sale and its registration. But in cross-examination the matter was cleared up, and the plaintiff's brother distinctly staled that lie came to know of the sale by seeing the Registrar and that he then informed his brother. Another point which was suggested was that the plaintiff' never made any inquiry as to the price. It is well known that the rules of Muhammadan law as to the making of the different demands are extremely technical. It might well be urged that if before making the demands the pre-emptor began to ask questions about the price the subsequent demand would be bad. The probabilities are that any person making the demands required by the Muhammadan law would be careful to confine himself to the actual demand required. If the pre-emptor happened to be a pleader he might well think that it would be extremely dangerous to make any statement which would lend colour to the argument that the demand was conditional. Furthermore, it must be remembered that if Muhammad Siddiq had found that the price was altogether unreasonable or beyond what lie was able to or willing to pay, there would be nothing to prevent him letting the matter drop and not proceeding with his claim for preemption. We think that the learned Munsif, who had all the witnesses, whom the plaintiff examined and the single witness whom the defendant examined before him, was in a for better position than this Court or any other to decide this question of fact. It is somewhat significant that the defendants withdrew five out of their six witnesses. We agree with the learned Munsif that the demands were made. It remains to consider whether these demands were sufficient in law. There is no special formula laid down by the Muhammadan law. There cannot be the least doubt that if the plaintiff made the demands, the vendee knew perfectly well to what property the demands related. We think under the circumstances of the present case that so long as the demands were made as deposed to by the plaintiff that they were sufficient to entitle him to maintain the present suit.
6. We accordingly allow the appeal, set aside the decree of the learned District Judge and restore the decree of the court of first instance with costs in all courts.