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Hansraj Vs. Shiam Sunder Tewari and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All408; 63Ind.Cas.423
AppellantHansraj
RespondentShiam Sunder Tewari and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 27, applicability of--appellate court, power of, to admit additional evidence. - .....1918 and the 30th of august was fixed for delivery of judgment. for some reason or other the learned judge of the court below examined the plaintiff on the 27th of august, for which we see no justification. it is not the business of the appellate court to supplement the evidence adduced by one party or another in the court below. there is admittedly no application on the record to show that any of the parties wanted to produce additional evidence. under these circumstances we think that the deposition of the plaintiff dated the 27th of august 1918 should be deleted from the record and the case decided on the materials as they stand after this has been done. there seems to have been no proper trial of the appeal in this sense. we, therefore, set aside the order of the court below.....
Judgment:

Gokul Prasad, J.

1. The sole point argued before us at present in this appeal in whether the lower Court was or was not justified in taking additional evidence after the case had been argued before it and a date fixed for judgment. No reasons are recorded by the Judge for admitting such evidence except what he says in the judgment. It appears from a perusal of the record that the case was argued on the 23rd of August 1918 and the 30th of August was fixed for delivery of judgment. For some reason or other the learned Judge of the Court below examined the plaintiff on the 27th of August, for which we see no justification. It is not the business of the Appellate Court to supplement the evidence adduced by one party or another in the Court below. There is admittedly no application on the record to show that any of the parties wanted to produce additional evidence. Under these circumstances we think that the deposition of the plaintiff dated the 27th of August 1918 should be deleted from the record and the case decided on the materials as they stand after this has been done. There seems to have been no proper trial of the appeal in this sense. We, therefore, set aside the order of the Court below and send back the case to that Court for being re-admitted on its original number and disposed of according to law,

2. Costs here and hitherto will abide the event. The costs in this Court will include fees on the higher scale.

Stuart, J.

3. While concurring in the order of my learned senior colleague, I wish to note that the provisions of Order XLI, Rule 27, might have been invoked in support of the action of the learned Additional Judge of the lower Appellate Court, had he recorded his reasons for admission of the additional evidence, but as he did not do so, the provisions of that rule had no application.


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