1. This was a suit by the appellant on a demand promissory-note for Rs. 718, signed on March 13th, 1907, by Naurang Mal and Murli Dhar, who are now represented by the respondent and others. The appellant stated in the plaint that the maker of the note had borrowed two sums of Rs. 150 and Rs. 170 in April and June 1907 on mortgages and left the money with the appellant's brother Mittar Sen to be paid to the appellants on account of the note but the money had not been paid, therefore, the appellant claimed the whole amount for which the note was given and interest thereon at the rate stated in the note. The respondent's defence was that the appellant and his brother Mittar Sen were joint in estate, that a dispute between the appellant and the makers of the note had been referred to the arbitration of Umrao Singh and Newal Singh with the result that it was decided that the two mortgages mentioned above should be made for sum aggregating Rs. 320, and the balance Rs. 400 should be paid in cash; and that, in pursuance of the award, Rs. 400 was paid to the appellant.
2. The first Court found that the appellant and his brother were joint and that the promissory-note had been re-placed by the mortgages to the extent of Rs. 320, the payment of the sum of Rs. 400 had had been proved. It gave the appellant a decree for Rs. 512 odd, being the amount due on the note less the amount secured by the two mortgages. The respondent appealed to the District Judge, who was inclined to think that a passage in the mortgage of June 1907, showed that the sum of Rs. 400 had been paid to the appellant as arranged by the arbitrators, but he was puzzled by the fact that the note had remained in the hands of the appellant and no receipt could be shown for the sum of Rs. 400 alleged to have been paid to the appellant. The respondent urged before the learned Judge that Rs. 200 had been paid to Umrao Singh, one of the arbitrators; that Umrao Singh had himself obtained another sum of Rs. 200 on a mortgage and paid both sums to the appellant and got the promissory-note back but the appellant had managed to get it from Umrao's widow after his death. The learned Judge then remitted three issues to the first Court. Neither party having produced any evidence, the first Court returned the record to the District Judge.
3. What then took place in the lower Appellate Court appears from the following extract from his judgment:
When the case came before mo on the 30th November the reference to arbitration was not on the file, and though the balance of probability was against the plaintiff I thought a certainty was obtainable, I, therefore, framed three issues dealing with the alleged proceedings of the arbitrator and remanded the case. No evidence was adduced on them.... The reference to arbitration had, however, been brought on the file.
To-day was fixed for hearing and the appellants' Pleader came in with a compromise which the plaintiff repudiated when it was read to him.... Under Order XLI, Rule 27, to enable me to pronounce judgment, I examined Khazan and also Patina Lal and brought the repudiated compromise on the record as a paper, its contents not having been proved, it corroborates the evidence that the parties came to terms and confirms the explanation of failure to bring evidence on the issues remanded. It is clear that Khazan was willing to compromise 2 days ago but to-day is greedy and repudiates his agreement. Khazm's conduct and the reference to Umrao Singh's arbitration give me in fact the certainty that was lacking on the 30th November when the probabilities only were against Khazan. Now, it is certain that Shahzad's claim was wiped out in 1907, by the payment of Rs. 400 to his elder son Khazan and the execution of two mortgages in favour of his younger son.
4. In the first place, I think that there was no justification for remitting issues to the Court of first instance and giving the respondent a second opportunity of proving his case by producing evidence which he might have produced in the first instance. Next, I think that when the respondent did not avail himself of the opportunity that was given to him the District Judge ought to have gone en to decide the case at once. He says that the admission of further evidence was necessary Co enable him to pronounce judgment, but the provisions of Order XLI, Rule 27, are not intended to give a party a second opportunity of proving his case see the remarks in Kessowji Issur v. G.I.P. Railway Co. 31 B. 381 at p. 390 : 11 C.W.N. 721 : 6 C.L.J. 5 : 4 A.L.J. 461 : 2 M.L.T. 435 : 9 Bom. L.R. 671 : 17 M.L.J. 347. The learned Judge let in the evidence not to supply a defect or lacuna in the existing evidence but because he thought that some further evidence of a different kind was available. As a matter of fact, the Judge did not get the evidence which he expected, the evidence admitted by him does not bear directly upon the issues remitted by him and the learned Judge says so. He has used the evidence admitted by him merely for the purpose of importing prejudice into the case and punishing the appellant for refusing to come to terms; in my opinion, an improper thing to do. I cannot understand how the learned Judge can have considered himself justified in using the inchoate compromise against the appellant as he did. I disregard entirely the evidence admitted by the District Judge. It is quite clear, and the contrary has not been contended here, that the learned Judge agreed with the Munsif that the oral evidence adduced to prove the payment of Rs. 400 is worthless.
5. There remains the mortgage of June 1907 which is supposed to prove that the sum of Rs. 400 was paid. That mortgage purports to have been made to secure a loan taken 'babat bebaqi ek qita ruqqa kalmi min muqir Naurang Mal waste dene (qarza) Shahznd Rai.' It appears to me that these words do not necessarily mean that the mortgage was made in full discharge of the amount due on the ruqqi. The arrangement was that Rs. 400 should be paid in cash and payment of the balance (Rs. 320) secured by mortgage. The words quoted above do not necessarily mean more than that the mortgage is made on account of, in the sense of towards, the discharge of the sum due on the ruqqa or promissory-note. It was contended that the finding of the learned Judge was a finding of fact binding upon this Court in second appeal and could not be challenged because the appellant had not certified that there was no evidence to support the finding. But the finding that the ruqqa has been discharged rests upon the construction of the above quoted passage in the mortgage-deed and other evidence and I have found that the other evidence is not admissible. The evidence which remains, namely, the mortgage-deed, did not satisfy the learned Judge that payment had been made, for he called for other evidence. Therefore, upon the evidence properly admitted, there is no finding which can be said to be binding upon this Court in second appeal, upon the. question of the construction of the deed, this Court can in second appeal revise the flowing of the District Judge. In my opinion, the mortgage-deed of June 1907, does not prove the payment of Rs. 400 to the appellant. It appears to me to show nothing more than that the mortgage was made in pursuance of the award. I would allow the appeal, set aside the decree of the lower Appellate Court and restore the decree of the Court of first instance.
Karamat Husain, J.
6. I agree.
7. The order of the Court is that the appeal is allowed that the decree of the lower Appellate Court is set aside, and that the decree of the Court of first instance is restored with costs which in this Court will include fees on the higher scale.