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Kaniz Mustafa Vs. Musi Imran and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1917All96; 38Ind.Cas.669
AppellantKaniz Mustafa
RespondentMusi Imran and ors.
Excerpt:
.....court, power of, to admit additional evidence--substantial cause--practice. - - an application for guardianship was made in september 1914 to the court below and was decided in may 1915. one of the paints at issue was whether the lunatic hid or had not a strong antipathy towards the person who has been appointed. we are also told that the respondent endeavoured to secure the attendance of major wright in the court below, but owing to that gentleman's transfer or to other difficulties, he failed. they, no doubt, decide that as an ordinary rule of practice it is better for the appellate court to read the evidence in the court below first in order to inform its mind as to the desirability of admitting the additional evidence, but for substantial causes it gives us the power to.....1. in this case a preliminary objection is taken to the admissibility of the evidence of major wright taken on commission. it is alleged that in or about the end of 1913 or beginning of 1914 a certain person became of unsound mind; that he was under the supervision or medical attendance of major wright at agra for some three months in the early part of 1914, and that the person who is at present guardian of the person of the alleged lunatic, was at the place from time to time during that period. an application for guardianship was made in september 1914 to the court below and was decided in may 1915. one of the paints at issue was whether the lunatic hid or had not a strong antipathy towards the person who has been appointed. it appears by the judgment that the judge commented upon the.....
Judgment:

1. In this case a preliminary objection is taken to the admissibility of the evidence of Major Wright taken on commission. It is alleged that in or about the end of 1913 or beginning of 1914 a certain person became of unsound mind; that he was under the supervision or medical attendance of Major Wright at Agra for some three months in the early part of 1914, and that the person who is at present guardian of the person of the alleged lunatic, was at the place from time to time during that period. An application for guardianship was made in September 1914 to the Court below and was decided in May 1915. One of the paints at issue was whether the lunatic hid or had not a strong antipathy towards the person who has been appointed. It appears by the judgment that the Judge commented upon the absence of the evidence of Major Wright, who, whether he did so or not, had had ample opportunity of forming an opinion upon the point in dispute. We are also told that the respondent endeavoured to secure the attendance of Major Wright in the Court below, but owing to that gentleman's transfer or to other difficulties, he failed. Major Wright being in February 1916 on the point of leaving India again on public service, an application was made to this Court for his examination on commission. An order was made for his examination reserving to both parties the right to examine him or cross-examine him, reserving the question of the admissibility of his evidence, reserving the question of the costs of the commission, and, of course, the further right of any party to apply to call additional evidence when his evidence was admitted by this Court, if it ever was. The application now made by the applicant is to read that evidence. We think it quite clear that Rule 27 of Order XLI leaves the Appellate Court a wide discretion in the matter of the admission of additional evidence. The cases which have been cited to us on behalf of the respondent who objects, are distinguishable. They, no doubt, decide that as an ordinary rule of practice it is better for the Appellate Court to read the evidence in the Court below first in order to inform its mind as to the desirability of admitting the additional evidence, but for substantial causes it gives us the power to admit this evidence, and we think in this case there are substantial causes which distinguish the case from the authorities cited. First, this is a lunacy application and the duty of the Court is, to find, if it can, the proper person to appoint as guardian and as has been pointed out in argument, the materiality or otherwise of evidence, if there has been a decision of the Court below, is a little different in such a case from an ordinary civil suit between parties. Secondly, in this case the emergencies of the war, the difficulties of the medical service the fact that the respondent tried to get this evidence, and the fact that the Court below itself commented upon its absence, in our opinion, constitute a substantial cause. We think, therefore, that in the interest of justice this evidence should be read, reserving to the respondent the right to apply, if he thinks fit, for an opportunity to rebut it.


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