T.S. Krishnamoorthy Iyer, J.
1. The defendant is the appellant. This second appeal arises out of a suit for recovery of a sum of Rs. 2000 on the basis of Ext. P-1 dated 23-4-1954 alleged to have been written by the appellant in favour of the respondent. The appellant denied the execution of Ext. P. 1 and also denied having received any amount from the respondent under Ext P. 1. The learned Munsiff holding that Ext. P. 1 is not genuine dismissed the suit. The learned Additional District Judge, Trivandrum, decreed the suit.
2. The appellant who was examined as Dw. 1 in the trial court was recalled and examined by the appellate court as a court witness and that evidence was also taken into consideration by the appellate Judge in decreeing the suit.
3. The learned appellate Judge stated the reasons for recalling Dw. 1 as a court witness and examining him in the judgment under appeal thus:
'On hearing the arguments in this appeal it struck me to be strange that a defendant who was admitted to have been trading in pepper and other things at least up to 1950 according to the defendant, pleaded that he did not know to write even his name. He was purchasing hill produces from his place and was selling at Alleppey. I was not in a position to believe the plea of the defendant that he did not know to write his name. The lower court had the advantage of seeing the demeanour of this defendant. Therefore I asked the respondent counsel whether his party was present. He was keeping out. He was called in. As soon as he was called in, he attempted to cover his watch by putting his second cloth on his hand. For further clarification of the stand taken by him that he does not know to write even his name. I directed him to be further examined, and thus he was examined again before me.'
Mr. Nagendran appearing for the appellant submitted mat the above procedure followed by the learned Judge is in violation of the relevant provisions of the Civil P. C. and is highly irregular if not illegal. The power of an appellate court to receive additional evidence or to examine witnesses is contained in Order 41, Rule27 of the C. P. C. (as amended in Kerala) which reads as follows --
'(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if--
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(b) the party seeking to adduce additional evidence satisfies the Appellate Court that such evidence, notwithstanding the exercise of due diligence, was not within his knowledge or could not be produced by him at or before the time when the decree under appeal was passed, or
(c) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced or witness to be examined.
(2) Whenever additional evidence is allowed to be produced by an Appellate Court, the court shall record the reason for Its admission'.
4. The procedure, when additional evidence is directed to be taken, is prescribed by Order 41, Rule29, C. P. C. extracted below:
'Where additional evidence is directed or allowed to be taken, the Appellate Court shall specify the 'points to which the evidence is to be confined, and record on its proceedings the points so specified,'
I agree with the contention of the learned advocate for the appellant that the procedure adopted by the learned Additional District judge is in disregard of the relevant provisions of the Civil Procedure Code and the appeal has to be directed to be reheard by the Additional District Judge, Trivandrum, discarding the evidence recorded by him in the appeal.
5. Dw. 1 was examined by the appellate court as a court witness on 28-l-1961. The judgment in the case was pronounced on 30-1-1961. I do not find any order nor has any been brought to my notice passed by the learned Judge in compliance of the provisions of Order 41, Rules 27 and 29 before the examination of Dw. 1 by the appellate Court. As has been stated by their Lordships of the Supreme Court in Arjan Singh v. Kartar Singh, AIR 1951 SC 193 the legitimate occasion for the application of Order 41, B. 27 C. P. C. is when examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where, a discovery is made, outside the court, of fresh evidence and the application is made to import it. Though the decision to examine the appellant was at the time the appeal was heard the procedure which the learned Judge should have followed was to record the reasons for the examination of Dw. 1 and specify in the proceedings the points on which the evidence should be confined. This was not done. This violates Order 41, Rule 29 C. P. C. and the procedure adopted by the learned Judge is therefore highly irregular.
In Manmohan Das v. Mt. Ramdei, AIR 1931 PC 175 the question arose whether a deed of gift executed by Behari Lal in favour of his wife was fictitious or was a genuine transaction. The Subordinate Judge held that the transaction was fictitious. It had come out in evidence that one Mr. Dube, a barrister, was connected in the execution of the gift deed and he was not examined by either party. The High Court in appeal called Mr. Dube as a witness for the court. No orders were passed by the High Court at the time when the Judges decided to call Mr. Dube as a Court witness. The following reasons were given in the judgment of the High Court :
'Mr. Dube had not been examined in the Court of the Subordinate Judge, who remarks in his judgment that he ought to have been produced as a witness for the defence. We agree that it was desirable to have the evidence of Mr. Dube, and we think the Subordinate Judge might very well have done that we have done, namely, send for Mr. Dube and examine him as a Court-witness.'
When the matter came before the Privy Council, their Lordships of the Judicial Committee referring to Order 41, Rules 27 and 29 observed at p. 177 as follows;
'The examination of Mr, Dube in the High Court seems to have taken place with complete disregard of these requirements, so carefully framed to ensure that such exceptional procedure shall be resorted to only in special circumstances and with adequate safeguards. Their Lordships have before them no order or pronouncement requiring Mr. Dube's examination; there is no record of the reason for the admission of his evidence other than - the passage just quoted from the judgment of the High Court, nor is there any specification of the points to which his evidence was to be confined or any record in the proceedings of the points so specified. Moreover Mr. Dube appears to have been called as a witness at the outset of the hearing in the High Court and not after the Court had satisfied itself on examining the evidence taken below that there were matters on which his evidence was essential to enable them to do justice between the parties.
In these circumstances their Lordships cannot regard the introduction of Mr. Dube's evidence otherwise than as highly irregular and in their opinion it must be entirely discarded.' In the above case their Lordships of the Judicial Committee strongly condemned the procedure of the trial court in summoning a witness as a court witness in the following terms at p. 176:-- 'Before considering the case on its merits their Lordships desire to draw attention to the procedure which has been adopted in the taking of the evidence. At the trial before the Subordinate Judge the evidence first recorded is that of the defendant, Behari Lal, who is described as a 'Court-witness' and appears to have been called into the witness-box by the Judge himself. The record before their Lordships discloses no justification for this unusual proceeding. No doubt under Order 10, Rule2, any party present in Court may be examined orally by the court at any stage of the hearing, and Court may if it thinks fit put in the course of such examination questions suggested by either party. But this power is intended to he used by the Judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinary procedure at trial as prescribed in Order 18.'
6. Even assuming without deciding that the appellate court also can exercise the powers under Order 10, Rule 2, C. P. C. I can find no justification at all for the procedure adopted by the learned Judge in this case. In Koyakutty v. Kunhali, AIR 1946 Mad 203 Mr. Justice Rajamannar, as he then was, relying on the decision of the Judicial Committee quoted above, observed that where an appellate Court summons an additional witness without giving any reason or without specifying the points to which the evidence is to be confined as required by Order 41, Rules 27 and 29, but merely states in its judgment that additional evidence was necessary to enable it to come to a conclusion regarding the matter in controversy, the reasons given in the Judgment cannot amount to a fulfilment of the conditions imposed on the Court by Order 41, Rule 27, and such evidence must be discarded.'
7. The main reason given by the appellateJudge for examining Dw. 1 as a Court witnesswas because the learned Judge thought that heshould have an opportunity to have the witnessexamined before mm since the learned Munsiffwho decided the case had the opportunity ofobserving the demeanour of the respondent. Thisis no ground for exercising the power underOrder 41, Rule 27 C. P. C. I am therefore ofthe view, that the procedure adopted by thelearned Judge in summoning Dw. 1 as a Courtwitness and examining him is highly irregular.The judgment of the lower appellate court wasmaterially influenced by this incompetent evidence. This additional evidence has to be completely discarded. The only course left to meis therefore to set aside the judgment and decreeof the lower appellate court and remand the casefor fresh disposal without being influenced by theevidence of Dw. 1 recorded by the appellateJudge on 28-1-1961. The parties will suffer theircosts in this Court except the court fee paid OBthe appeal memorandum which will be refundedto the appellant's advocate.