G.B. Patnaik, J.
1. Defendant is the petitioner against the Judgment of the Subordinate Judge, Bargarh, in Money Appeal No. 5 of 1977. Originally a second appeal had been filed but being confronted with the provisions of Section 102 of the Civil P.C., the Second Appeal has been convened to a civil revision.
2. Plaintiff filed the suit for recovery of a sum of Rs. 730/- on the allegation that the defendant had taken a loan of Rs. 575/- from him on 19-8-1971 with the promise to repay it with interest at the rate of 12 per cent per annum and since the defendant did not repay the amount in spite of service of a registered notice on 1-8-1973, the suit was filed.
3. The defendant filed a written statement taking the stand that the plaintiff has been paid all his dues under receipt Dt. 14-7-1973 executed by the plaintiff in favour of Potula Venkata Satyanarayana Murty, the brother of the defendant, living in joint mess and property and, therefore, the suit was liable to be dismissed.
4. The learned Munsif on an analysis of the evidence adduced by the parties held that D.Ws. 2 and 3 were disinterested witnesses and were co-villagers of the plaintiff and their testimony, therefore, deserved utmost credence. He also considered Ext. A, the' receipt granted by the plaintiff, in support of the repayment of the loan and ultimately held that the defendant had paid the amount through D.Ws. 2 and 3 to the plaintiff as averred in the written statement. While accepting Ext. A, the learned Munsif also relied upon the evidence of D.W. 1 who had scribed the receipt and in whose presence the plaintiff had appended his signature (Ext. A/1) on Ext. A. On a finding that the loan amount had been paid by the defendant, the suit was dismissed.
5. On appeal, the learned Subordinate Judge, disagreeing with the findings of the learned Munsif held that the defendant had not paid the dues to the plaintiff which was still outstanding against him and, therefore, the defendant was bound to repay the dues to the plaintiff as claimed. This finding of the Subordinate Judge is being challenged by the defendant in this revision.
6. Mr. P. K. Misra, learned Counsel appearing for the petitioner contends that the appellate Court acted with material irregularity in exercising jurisdiction as the evidence of D.Ws. 2 and 3 was ignored on the ground that the factum of repayment had not been pleaded in the written statement. He further contended that Ext. A was similarly not relied upon on a flimsy ground that existence of Ext. A was not disclosed by the defendant in his reply to the notice given by the plaintiff. Thus, according to him, illegal exclusion of evidence of D.Ws. 1 and 2 and Ext. A has caused gross miscarriage of justice and, therefore, the High Court has jurisdiction under Section 115 of the Civil P.C. to interfere with the ultimate finding of the appellate Court.
Mr. S. C. Mohapatra, learned Counsel for the plaintiff-opposite party, on the other hand, contends that the appellate Court having appraised the evidence and having come to a finding that the loan amount had not been repaid and the said finding not being relatable to the jurisdiction of the Court, the High Court will not exercise its discretionary jurisdiction under Section 115 of the Code to correct that finding of the appellate Court even if the same is palpably erroneous. Mr. Mohapatra in support of his contention places reliance on the decision of the Supreme Court in the case of Hari Shankar v. Rao Giridhari Lal Chowdhury, AIR 1963 SC 698 and the decision of this court in the case of Lokanath Maharana v. Dr. A. B. Mohanty (1977) 43 Cut LT 520 : (AIR 1977 Orissa 182). The latter decision of this Court has in fact relied upon the decision of the Supreme Court referred to supra. The Supreme Court in fact has approved a passage from the judgment of Beaumont C. J. in the case of Bell & Co. Ltd. v. Waman Hemaraj, AIR 1938 Bom 223. Beaumont, C. J. was considering a case under Section 25 of the Provincial Small Cause Courts Act and while stating the object of the said Section 25 of the Act himself has stated : --
'I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders.....'
From the aforesaid exposition of law, it is equally clear that in exercise of its revisional jurisdiction under Section 115 of the Civil P.C., the Court can interfere, if it comes to the conclusion that the appellate Court erroneously refused to consider admissible and material evidence which has influenced the final order that has been passed.
7. The Supreme Court in the case of Shaikh Jaffar Shaikh Mahmood v. Mohd Pasha Hakkani Saheb AIR 1975 SC 794, while construing the revisional power of High Court under Section 26(c) of the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954, which is in pari materia with Section 115 of the Civil P.C., held thus : --
'The High Court under Section 26(c) has to see whether there is any error of jurisdiction committed by the Controller or by the appellate authority in passing the order or whether there is any such manifest error of procedure committed by the courts as may affect the ultimate decision resulting in gross injustice. It is only in that context that under Section 26(c) the words 'acted illegally' or 'with material irregularity' have been used.'
(Underlining is mine)
In my view the aforesaid dictum of the Supreme Court lays down the correct position of law. Exclusion of evidence holding it inadmissible although under law the evidence is not inadmissible and when such evidence is a material piece of evidence influencing the Court in passing the final order, would come within the concept of 'acted in exercise of jurisdiction illegally and with material irregularity', used in Section 115(1)(c) of the Civil P.C.
8. The Subordinate Judge discarded the evidence of D.Ws. 2 and 3 mainly on the ground that there was no pleading stating the material particulars. The finding of the Subordinate Judge is quoted hereunder : --
'Thus, in view of the absence of specific pleading stating such material particulars of material facts, the evidence should be completely left out of consideration as being inadmissible in evidence.'
In support of such conclusion, the Subordinate Judge has placed reliance on the decision of this Court in Bira Jena v. Tauli Dei (1972) 38 Cut LT 39: (AIR 1972 Orissa 143). In my view that decision has no application in construing pleadings. The ratio 'allegations of fraud must be specifically pleaded and proved' has no application in construing the pleadings. In this particular case, the defendant has taken a specific stand that the loan amount has been repaid and plaintiff had granted a certificate to that effect and this has been deposed to by D.Ws.2 and 3. In the written statement, in para 2, it has been specifically pleaded ; --
'That the plaintiff has been paid all hisdues under receipt dated 14-7-73 executed by him in favour of Potula Venkata Satyanarayana Murty, the brother of the defendant living joint in Mess and property.'
In this view of the matter, the Subordinate Judge, committed gross error of record in completely leaving out of consideration the evidence of D.Ws. 2 and 3 as inadmissible in evidence. Similarly Ext. A has been discarded on the ground that its existence was not disclosed in the reply (Ext. 8), though an expert was examined to prove that the signature of plaintiff on Ext. A tallies with his admitted signature and though D.W. 1 the scribe of Ext. A was examined to prove that the document was scribed at the instance of the plaintiff. The Subordinate Judge committed gross error in rejecting Ext. A from his consideration. Non-consideration of these material pieces of evidence has influenced the ultimate decision of the Court and in my view has caused gross miscarriage of justice. In this view of the matter, the judgment of the Subordinate Judge cannot be sustained and is set aside. While setting aside the judgment of the Subordinate Judge, two courses are open to me, either to reappraise the evidence and come to a finding of my own or to remand the matter to the Subordinate Judge to redispose of the appeal, considering the evidence which have been illegally kept out of consideration earlier. Since I am in revisional jurisdiction, 1 refrain from appraising the evidence myself and think it appropriate to adopt the latter course, namely, to remand the case to the appellate Court for redisposal of the appeal in accordance with the observations made by me in this judgment.
9. The Civil Revision is accordingly allowed. The judgment and decree of the Subordinate Judge, Bargarh are hereby set aside. The appeal is remanded to the appellate court for fresh disposal in accordance with law on the basis of the evidence already on record and in the light of my above observations after giving the parties an opportunity of being heard afresh.
Patties are directed to bear their own costs of this Court.
Parties are directed to appear before the appellate Court on 12-8-1983 to receive appropriate directions.