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Baldeo Ram and anr. Vs. Kunkun Ram - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1925All808
AppellantBaldeo Ram and anr.
RespondentKunkun Ram
Excerpt:
.....when a litigant alleges himself to have discovered facts such as to warrant the invocation of the rule above-mentioned, at a time when an appeal against the decision complained of is actually pending, is a somewhat difficult one. it may be that the particular question now under consideration was not adequately considered when the rules under the code of civil procedure were framed, and that some addition to these rules might well be made to deal with cases of this sort, though they cannot be of frequent occurrence. if the matter were res integra, i would take leave to suggest, that, in the absence of any rule dealing specifically with this point, a court of appeal might in the interests of justice, stretch the words, or for any other substantial cause,'in order 41, rule 27 aforesaid, so..........had called chhedi as their own witness, and chhedi had deposed positively that the name of his father's father was behari, and that the said behari was never known by any other name. i doubt if the plaintiffs could have been permitted to contradict their own witnesses on this point.2. there are two other documents tendered which are of the nature of reports made by police officers (presumably still alive) in connexion with an enquiry held by the said officers in the exercise of their lawful jurisdiction in the month of december 1920. this evidence, as it stands, is not admissible at all against the defendant in the present suit. if the plaintiffs had called one or both of the police officers in question as a witness and sought to examine such witness on the proceedings in question,.....
Judgment:

Piggott, J.

1. This is an appeal by two plaintiffs whose suit for possession of a certain house and recovery of rent has been dismissed by two Courts. The first question raised is whether the judgment of the lower appellate Court can be accepted as one which complies adequately with the requirements of the law on the subject. Obviously the learned District Judge, having heard the arguments in the case, thought so little of the plaintiffs' claim that he could not be troubled to deal with the points taken in the memorandum of appeal before him systematically or in any detail. He did, however, apply his mind to the most crucial point in the case. The title of the plaintiffs came to them from one Chhedi, who claimed as heir under the Hindu Law of one Sukh Lal. The plaintiffs had to prove Chhedi's title, failing which their suit could not succeed. Now, the plaintiffs' case was that Chhedi was the son of one Khedu, and that Khedu and Sukh Lal were brothers, the sons of one Behari. On the other side evidence was produced that the name of Sukh Lal's father was Raghubar. The learned District Judge felt satisfied that the evidence on the record proved this point against the plaintiffs. He has produced a judgment which I do not consider commendable or altogether satisfactory, but I am not prepared to set aside the proceedings in the lower Court, or to order the appeal to be reheard as a first appeal in that Court, merely on the ground of a technical objection to the form of the judgment. So far as this matter goes there is only one other point that is at all arguable on behalf of the appellants. The evidence that Sukh Lai's father was called Raghubar included a certain document, as to which objection was taken that it had not been proved in the manner required by law. It was not put forward as a document of title. What was put in evidence was simply a statement made in writing by one Sukh Lal, since deceased, that the name of his father was Raghubar. I am satisfied that, for the purpose for which it was used, that statement was duly proved against the plaintiffs. There is one other matter with which I must deal. Along with the petition of appeal the plaintiffs have tendered a petition supported by affidavit, asking this Court to admit further evidence. The evidence in question is documentary, and it falls under two distinct heads. In the first place, copies are tendered of certain proceedings in a former litigation, deseribed as Suit No. 143 of 1887, the object of which is to prove that Sukh Lal's father was called both Behari and Raghubar. I have thought it expedient to examine these documents, without prejudice to the question, whether they ought or ought not at this stage to be admitted in evidence. It was pointed out long ago by a Bench of this Court vide In re Nand Kishore (1910) 32 All. 71 that the appellate Court, as such, has no jurisdiction to admit fresh evidence merely on the ground that it had been discovered by one of the parties to litigation under such circumstances as would warrant an application for review of judgment under Order 47, Rule 1 of the Code of Civil Procedure. At the same time it must be admitted that the position which arises when a litigant alleges himself to have discovered facts such as to warrant the invocation of the rule above-mentioned, at a time when an appeal against the decision complained of is actually pending, is a somewhat difficult one. On a strict interpretation of Order 47, Rule 1, it would seem that the mere fact that an appeal has been preferred excludes the application of the said rule. This is not, of course, an answer to the contention that the powers of an appellate Court in the matter of the production of additional evidence are strictly limited by Order 41, Rule 27 of the same Code. It may be that the particular question now under consideration was not adequately considered when the rules under the Code of Civil Procedure were framed, and that some addition to these rules might well be made to deal with cases of this sort, though they cannot be of frequent occurrence. Sitting as a single Judge I should consider myself bound, if the appeal before me could only be disposed of on this one ground, to follow the ruling laid down in Nand Kishore's case (1910) 32 All. 71 above referred to. If the matter were res Integra, I would take leave to suggest, that, in the absence of any rule dealing specifically with this point, a Court of appeal might in the interests of justice, stretch the words, 'or for any other substantial cause,' in Order 41, Rule 27 aforesaid, so as to enable it to take action if the interests of justice clearly required it to do so. The present is not in my opinion such a case. To begin with, the affidavit along with which this additional evidence is tendered is unsatisfactory and inadequate. One thing is certain that, if additional evidence is to be admitted at all under the circumstances now before me, the principles laid down in Order 47, Rule 1 of the Civil Procedure Code must be strictly applied, in order to determine the admissibility or otherwise of the additional evidence. On the affidavit before me I am in no way prepared to hold that the additional evidence which I am now considering could not have been produced by the present plaintiffs at the time when the decree under appeal was passed, if they had exercised due diligence. As I am dealing with this matter on broadly equitable; grounds, I may add that, having looked through the documents relating to the proceedings in Suit No. 147 of 1887, I consider them quite inconclusive, and am not of opinion that they either would or should have affected the decision of the question in issue if they had been tendered in the trial Court. Strictly speaking, I doubt it if they were admissible at all. The plaintiffs had called Chhedi as their own witness, and Chhedi had deposed positively that the name of his father's father was Behari, and that the said Behari was never known by any other name. I doubt if the plaintiffs could have been permitted to contradict their own witnesses on this point.

2. There are two other documents tendered which are of the nature of reports made by police officers (presumably still alive) in connexion with an enquiry held by the said officers in the exercise of their lawful jurisdiction in the month of December 1920. This evidence, as it stands, is not admissible at all against the defendant in the present suit. If the plaintiffs had called one or both of the police officers in question as a witness and sought to examine such witness on the proceedings in question, the witness, could no doubt have been asked to refresh his memory with reference to these documents. They could not have been put in evidence in any other way. For these reasons I have rejected the application for the admission of additional evidence.

3. The result is that this appeal fails, and I dismiss it accordingly with costs including fees on the higher scale.


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