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M. Ajodhia Prasad Vs. Choubey Ram NaraIn and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All127; 62Ind.Cas.447
AppellantM. Ajodhia Prasad
RespondentChoubey Ram NaraIn and anr.
Excerpt:
.....xli, rule 25 - issue remitted with direction to record evidence of parties--evidence of one patty recorded without date being communicated to other party--ex parte proceedings--restoration--court, whether empowered to restore case and record further evidence. - - the learned munsif on this issued notice to the plaintiff and, after bearing him and the defendants, was satisfied that as a matter of fact the date fixed for the taking of the evidence had not been communicated to the defendants and that they were ignorant of it and that it was for this reason that they had not produced their evidence. he advised the appellate court of what be bad done. the learned munsif was satisfied that the defendants had not been given an opportunity to produce their evidence, because the date fixed..........of the defendants appeared and presented an application to the court, in which he stated that the date fixed for the taking of evidence had not been communicated to him and that he was unaware of it until told by bis pleader that the case had been decided ex parte the day before. the learned munsif on this issued notice to the plaintiff and, after bearing him and the defendants, was satisfied that as a matter of fact the date fixed for the taking of the evidence had not been communicated to the defendants and that they were ignorant of it and that it was for this reason that they had not produced their evidence. he accordingly passed an order restoring the bearing and fixed a new date for the parties to produce their evidence. he advised the appellate court of what be bad done. it is.....
Judgment:

Ryves, J.

1. This application in civil revision arises out of the following circumstances. Ajodhia Prasad brought a suit against Choubey Ram Narain and others in the Court of the Munsif of Allahabad. The learned Munsif decreed the suit. Choubey Ram Narain and the other defendants appealed to the learned District Judge, who name to the conclusion that he could not decide the appeal without a definite finding being arrived at by the learned Munsif on three, particular issue. He framed these issues and sent them down to the learned Munsif with the following directions:'I remit the following issues to the lower Court and direct it to decide them after taking such further evidence as may be produced by the parties, either documentary or oral.' The learned Munsif, on receipt of this order, fixed the 10th of March 1920 for the parties to produce their evidence on the remanded issues. On that data the plaintiff appeared but the defendants were absent. The Court recorded the evidence produced on behalf of the plaintiff and wrote its decision on the issues on that evidence on the same date. On the 11 th of March one of the defendants appeared and presented an application to the Court, in which he stated that the date fixed for the taking of evidence had not been communicated to him and that he was unaware of it until told by bis Pleader that the case had been decided ex parte the day before. The learned Munsif on this issued notice to the plaintiff and, after bearing him and the defendants, was satisfied that as a matter of fact the date fixed for the taking of the evidence had not been communicated to the defendants and that they were ignorant of it and that it was for this reason that they had not produced their evidence. He accordingly passed an order restoring the bearing and fixed a new date for the parties to produce their evidence. He advised the Appellate Court of what be bad done. It is this order of the learned Munsif restoring the case and giving an opportunity to the defendants to produce their evidence that is impugned in this revision. It is said that once he had given a decision on the remanded issues, he was functus officio and that there is no provision in the Code which would enable him to take further evidence in the matter. I am unable to agree. The learned District Judge, when he remanded the issues to the Court below, desired a decision on those issues after the evidence of both parlies had been recorded. It was the duty of the learned Munsif to give an opportunity to both parties to produce their evidence. The learned Munsif was satisfied that the defendants had not been given an opportunity to produce their evidence, because the date fixed for the production of such evidence had not been communicated to them. He, therefore, had failed to carry out the directions of the Appellate Court. the order of the Appellate Court is one under Order XLI, Rule 25. That Rule directs that when the issues have been referred to the Court whose decree is under appeal, such Court shall proceed to try such issues and shall return the evidence to the Appellate Court together with his finding thereon and the reasons therefor. The First Court, it seems to me, could not have complied with the provision of this Rule without taking the evidence for the defendants. For these reasons I see no reason to interfere in revision. I reject the application with costs.


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