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Gauri Rai and ors. Vs. Musammat Bhaggina - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All476; 31Ind.Cas.873
AppellantGauri Rai and ors.
RespondentMusammat Bhaggina
Excerpt:
.....better if courts of first appeal would be content to follow strictly the procedure laid down by order xli, rule 27 of the code of civil procedure, and specially by the second clause of the said..........a decree based upon a rate of rs. 4-9-6 per bigha per annum. on appeal by the plaintiff the district judge found the rate of rent payable to be rs. 8 per bigha per annum arid amended the decree of 'the' first court accordingly. in second appeal it is contended that the decision of the 'district' judge was arrived at after an improper' use of the powers of the court under order xli, rule 27 of the code of civil procedure, that is to say, after improperly permitting the plaintiff to produce additional evidence. secondly, it is contended that the decision is liable to interference in second appeal because it was based on a misinterpretation of the documentary evidence before the court. these are the only pleas with which i am concerned. i may note that there was a good deal of.....
Judgment:

Piggott, J.

1. This is an appeal by the defendants in a suit for arrears of rent. The only question is as to the rate of rent payable by the said defendants to the plaintiff-respondent. The first Court gave the plaintiff a decree based upon a rate of Rs. 4-9-6 per bigha per annum. On appeal by the plaintiff the District Judge found the rate of rent payable to be Rs. 8 per bigha per annum arid amended the decree of 'the' first Court accordingly. In second appeal it is contended that the decision of the 'District' Judge was arrived at after an improper' use of the powers of the Court under Order XLI, Rule 27 of the Code of Civil Procedure, that is to say, after improperly permitting the plaintiff to produce additional evidence. Secondly, it is contended that the decision is liable to interference in second appeal because it was based on a misinterpretation of the documentary evidence before the Court. These are the only pleas with which I am concerned. I may note that there was a good deal of evidence' produced on the question of the rate of rent payable including entries in the patwari's papers and records of past litigation not between the same parties, which were alleged to be relevant to the issue before the Court for various reasons with which I am not concerned. Both parties, however, were agreed that there had been a previous litigation between the predecessors-in-title of the parties to the present suit, in which this very point had been raised and decided. This was a litigation which terminated in a decree of this Court dated January 5th, 1894. A copy of the judgment on which that decree was based was on the record. The important words in the judgment are the following: 'The decree of the Revenue Court in favour of the plaintiff, who as assignee of one Manbahal, the lessee from the admitted landlord, is entitled to recover the rent found due to the landlord from the land admittedly held by the respondent, should be restored' From the context it is clear that by the decree of the Revenue Court was meant the decree of the Assistant Collector in that very case, which had been reversed by the District Judge in first appeal. I do not think it can be said that the lower Appellate Court has misinterpreted these words. The learned District Judge remarks that the judgment of the High Court is silent about the rate of rent. On behalf of the defendants-appellants it is contended that the said judgment is not silent inasmuch as it lays down that the rent recoverable is that due to the landlord from the defendants. The suggestion I take it is that the District Judge should have gone on to ascertain from the materials on the record what was the rent due to the landlord, that is to say, to the superior proprietor of this land. I think, however, that the learned District Judge has correctly appreciated the situation. The judgment of the High Court did not merely lay down that the plaintiff was entitled to recover the rent due to the landlord, the expression used was rent found duo to the landlord. Read in connection with the context, these words obviously mean the rent which the Assistant Collector found to be due; otherwise, this Court in second appeal would not have restored the decree of the Assistant Collector but would have called for a finding as to the rate of rent due. Therefore, the learned District Judge set himself to enquire what was the rent which the Assistant Collector found to be due in the litigation which terminated in this Court's decree of January 5th, 1894. Curiously enough there was no copy of the judgment of the Assistant Collector to be found on the record. The parties had caused to be summoned in the first Court the record of certain previous litigations, and it is possible that a copy of this particular judgment was to be found on one or the other of those files and was made the basis of argument by the parties in the Court of first instance. On the face of the record, however, there appears to be a serious lacuna in the evidence and it was for the District Judge to determine what he ought to do under the circumstances. The case for the present' appellants I understand, to be that it was the duty of the District Judge to hold the plaintiff responsible for the absence from the record of sufficient evidence as to the amount of the rent found due in the previous litigation. The appeal then before the Court, being an appeal by-the plaintiff, would in that case have failed and the decree of the first Court would have been affirmed. The District Judge appears to have permitted, if he did not actually direct, the plaintiff (appellant before his Court), to file a copy of the judgment of the Assistant Collector., This he has endorsed with a simple order admitting it on to the record without giving any reason. That order bears the same date as the judgment which followed upon it and the learned District Judge seems to have thought that the statement of the facts set forth in his judgment was on the face of it sufficient justification for the course adopted by him. It would he better if Courts of first appeal would be content to follow strictly the procedure laid down by Order XLI, Rule 27 of the Code of Civil Procedure, and specially by the second Clause of the said rule. At the same time, I am not prepared to hold under the circumstances of the present case that the learned District Judge did not exercise a judicial discretion in the admission of this evidence or that he exercised that discretion improperly or irregularly so as to warrant the interference of this Court in second appeal. After all he was dealing with the record of a litigation which had taken place in his own Court. If he had simply sent for the file from his record room for inspection, it is quite probable that no objection would have been taken and yet it is in many ways more convenient that the facts connected with a previous litigation should be proved by the production of certified copies than by the inspection of record which might not come before a higher Court in the case of a subsequent appeal. For these reasons I find no adequate ground for interference in this case and I dismiss this appeal with costs.


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