1. This is a revision petition filed under Section 115 of the Civil Procedure Code by the original petitioner against the original opponent against the order of remand passed by the learned 3rd Extra Assistant Judge, Nadiad, in Civil Appeal No. 68 of 1968.
2. The facts giving rise to this revision petition, briefly stated, are as under:
The present petitioner filed Hindu Marriage Petition No. 15 of 1965 against the opponent in the Court of Civil Judge, Senior Division, Nadiad, under Section 9 of the Hindu Marriage Act, 1955, for obtaining a decree for restitution of conjugal rights. According to her, she was married to the opponent on 26th May, 1959 according to the Hindu rites and custom of the caste. There was consummation of marriage. During the wedlock, two children were born. The opponent started illtreating her after some time and used to press her to bring money from her grand-father. She was ultimately driven out after illtreating her. All her attempts to call her back failed and hence a petition was filed for the aforesaid relief.
3. The opponent, by his written statement, Ex. 10, contended inter alia that there was custom of giving divorce in their community and accordingly a divorce was given on 2nd September, 1964 and a Fargati deed was executed in that behalf. The allegations regarding illtreatment, etc., were denied.
4. The learned trial Judge framed the issues at Ex. 15 and recorded a finding that the respondent had not proved that there was a custom in their community to give divorce by deed of divorce as alleged. He also recorded a finding that it was not proved that the petitioner had executed a deed of divorce. The petitioner was, according to him, entitled to a decree for restitution of conjugal rights and accordingly a decree came to be passed.
5. Against that judgment and decree, the opponent (husband) filed Civil Appeal No. 68 of 1968 in the District Court, Kaira at Nadiad.
6. The learned Assistant Judge who heard that appeal, came to the conclusion that the present opponent was wrongly not allowed to lead material evidence, namely, evidence of Mr. N.M. Shah, Taluka Magistrate, before whom, according to the opponent, the Fargati in question, Ex. 11/1, was executed. It was his conclusion that the trial Court had wrongly refused to allow the opponent to examine the writer of that deed and the attesting witnesses to that deed, who were kept present when the evidence of the opponent was being still recorded. He also came to the conclusion that certain witnesses who were to be examined by the opponent on the ground of the nature of the custom followed in their community for giving divorce, who were also present on the adjourned date when the evidence of the opponent was still being recorded, were not allowed to be examined by the Court on a wrong ground. The learned appellate Judge, on consideration of the circumstances noted by him in the judgment, came to the conclusion that there was no justification in rejecting the applications, Exs. 104 and 113 for witnesses present in the Court on behalf of the opponent on the ground that their names were not supplied in advance to other side. That evidence was not rejected on the ground that the objection was to obstruct or delay justice. In this view of the matter, the learned appellate judge observed that he was convinced that the learned trial Judge was not justified in rejecting the applications Exs. 104 and 113 to examine witnesses then present in the Court. In view of this conclusion of his, he observed in para 10 of his judgment:
'For the above reasons, in my opinion, the appellant-opponent must be allowed to examine Shri N.M. Shah, the Taluka Magistrate, (2) Natverlal Parsotam, the writer of the deed (Fargati-deed) marked 11/2, (3) Shri Trikambhai Talsibhai Patel, the attesting witness of the deed marked Ex. 11/1, (4) Ravjibhai Kalidas (the identifying as well as the attesting witness) and the witnesses regarding the custom in the caste of the parties, whose names must be given by the appellant-opponent on the date to be fixed for the list of witnesses before the date of hearing by the trial Court on remand'.
7. In para 11 of his judgment, the learned Judge observes:
'Ordinarily, this additional evidence is allowed under Order 41, Rule 1 (a) (really it should be Rule 27 (1) (a)) of the Civil Procedure Code on the ground that the trial Court had refused to admit evidence which ought to have been admitted and in that case under Order 41, Rule 28 the trial Court may be directed to record such additional evidence and to send it when taken to the appellate Court. However, in this case there are only two important questions, namely, proof of divorce-deed, marked 11/1 and the custom of divorce, and I amendment practically allowing additional evidence of all the four witnesses for the deed marked 11/1 and also for the custom and hence practically the whole important evidence is to be allowed to be led by the opponent and hence naturally the petitioner must be given the right to lead additional rebuttal evidence by recalling witnesses already examined or by examining new witnesses to rebut the additional evidence and practically there would be almost the whole dispute covered by the additional evidence. Under the circumstances, it will be in the interest of both the parties that the additional evidence covering the entire dispute, is properly considered by the trial Court also. So that, if occasion arises, the whole evidence is considered by the trial Court and then by appellate Court, if necessity arises. Hence, instead of directing the trial Court to record the evidence, in my opinion, this is a proper case in which as the additional evidence is to be allowed covering the entire dispute and not any part of it or any one issue out of many, the Court uses discretion under Section 151 of the Civil Procedure Code, and I remand the whole suit after setting aside the decree of the trial Court'.
In this view of the matter, he made the following decretal order:
'Order (dated) 14-11-1967 in judgment, Ex.169, and decree, Ex. 170, in Hindu Marriage Petition No. 16 of 1965 in the Court of Civil Judge, (Senior Division) at Nadiad, are hereby set aside and the same Hindu Marriage petition No. 16 of 1965 is remanded back for the disposal according to law to the said trial Court. The trial Court must allow opponent Mafatbhai Gopaldas Patel to examine (1) Shri N.M. Shah, Taluka Magistrate, (2) Natverlal Parsotambhai, the writer of deed, marked 11/1, (3) Trikamlal Talsibhai Patel, the attesting witness of (deed) marked 11/1, (4) Ravajibhai Kalidas who identified the petitioner and the witnesses on custom, whom the opponent-appellant wishes to examine and their names must be submitted by the appellant-opponent on the date to be fixed by the trial Court before fixing the date of hearing.
2. The trial Court must allow the petitioner-respondent to lead additional evidence to rebut the additional evidence adduced by the opponent by recalling the witnesses already examined or by examining other witnesses. The petitioner must also submit the list of witnesses required to be recalled or of new witnesses to be examined for the same on the same above date to be fixed by the trial Court before fixing the date of hearing.
3. Parties to bear their respective costs of this appeal'.
8. Being dissatisfied with this order, the original petitioner has preferred this revision petition in this Court.
9. Mr. Zaveri, appearing for the petitioner, made the following submissions:
1. The Appellate Court had no jurisdiction to set aside the decree and remand the suit, for disposal according to law, on the ground that the trial Court had wrongly refused the opponent to lead certain evidence. Such an order, according to him, was in contravention of the provisions of Order 41, Rules 28 and 29 of the Civil Procedure Code.
2. The appellate Court acted illegally in the exercise of its jurisdiction in allowing the original opponent to lead evidence that was refused by the trial Court on good grounds.
10. Before I consider the first submission, which is the most important submission in the present revision petition, I would like to deal with the second submission first.
11. It is significant to note that the defence was mainly founded on the basis of a customary divorce. It was the version of this Opponent from the very beginning that in the community to which the parties belonged, there was a custom of giving a divorce and the petitioner had, as per the custom, given such a divorce, evidenced by the deed, Ex. 11/1. At the stage of the trial, a pursis, Ex. 96, was given by the petitioner that there was a custom in their community regarding divorce. There was a dispute still between the parties as to the mode and manner as to how such a customary divorce can be given. It is, therefore, evident that these were two very material points to be decided in this proceeding.
12. Even before the suit came up for actual hearing, this opponent had prayed for the issue of summons to the aforesaid Taluka Magistrate and a summons was actually issued and the Taluka Magistrate had appeared. As the hearing had not taken place on that day, he was told that he would be intimated about his remaining present when his presence is required. The alleged divorce deed was produced at the earliest moment. For some months, the matter could not be heard. When the matter again came to be fixed for hearing, again the opponent took the necessary steps and the opponent gave an application, Ex. 79, on 1st July, 1967 for issuing summons on Mr. N.M. Shah, who was then transferred at Kapadwanj at Aval-karkun. The trial Court passed an order to issue summons at the risk of the party as the Darkhast was given late. The process fee was paid by him. The witness summons, Ex. 81, was prepared for this witness on 3-7-1967. There was a note in the Roznama that the said summons was not despatched by the clerk concerned to Kapadwanj before 6th July, 1967 and hence it was re-issued for 10th July, 1967. There was an endorsement in Ex. 81 for 10-7-1967. But that endorsement was not signed by the Clerk of the Court as observed by the learned Appellate Judge. Thus, though the summons was endorsed for re-issuing, for 10th July, 1967, it was not re-issued and despatched for summoning the witness on 10th July, 1967. On 6th July, 1967, for want of time, the Court had adjourned this case on 10th July, 1967. Then, the opponent gave one list of about 12 witnesses by Ext. 83, dated 7th July, 1967. The Court passed an order that it was not possible to issue summons when the case was fixed on 10th and 11th of that month. The learned appellate Judge thought that this was not proper. Opportunity should have been given to serve the witnesses by issuing urgent processes. On 10th July, 1967, opponent Mafatlal was examined. On that day the aforesaid Pursis, Ex. 96, was given. The learned appellate Judge has in his detailed order, referred to several dates and as to what happened on those dates and as to why he came to the conclusion that the learned trial Judge had wrongly refused the opponent to allow him to lead evidence referred to above. There are good reasons given by him and they are supported by the record.
13. Mr. Zaveri appearing for the petitioner, urged and urged vehemently at one stage that there were misstatements made by the learned appellate Judge. On examination it was found that there were no such misstatements made. The learned appellate Judge had very carefully taken into account as to what had happened on several dates.
14. It appears from the record that from the very beginning, active steps were taken on behalf of the opponent to summon witness Mr. N.M. Shah, the most material witness. It was only on account of some mistake in the office of the Court that the summons was not despatched to that witness for summoning him to appear on 10th July, 1967. As per the Pursis, Ex. 119, given on behalf of the opponent, the writer and the attesting witness to this alleged divorce-deed, were present in the Court. Mr. Zaveri urged that this Pursis appears to have been given surreptitiously without bringing its contents to the notice of the petitioner and eventually, the petitioner had no opportunity to challenge the contents of it. That Pursis has been given an Exhibit. It cannot, therefore, lie in the mouth of anyone to say that it was brought on the record surreptitiously. No affidavit has been filed challenging the correctness of it and no such ground was taken in the memo of the revision petition.
15. Mr. Zazeri, in support of these arguments of his, mainly laid stress on the contents of application, Ext. 113, and the order passed below it. That application was in relation to the witnesses regarding the custom who had not remained present on the earlier day on account of the monsoon and they had remained present on the day this application came to be given. That application and the order passed below it cannot justify us to come to the conclusion that this Pursis, Ex. 119, has been surreptitiously brought on the record or the contents of it are untrue. The learned appellate Judge has rightly stated that when witnesses regarding custom were present and the evidence of the opponent was still being recorded, it was the duty of the Court to examine them. In my opinion, the learned appellate Judge has rightly come to the conclusion that the trial Judge has wrongly refused the opponent to examine this evidence regarding the custom and has rightly come to the conclusion that the learned trial Judge has committed an error in refusing the opponent to give an opportunity to examine the Taluka Magistrate, the writer of the Fargati-deed and the attesting witnesses to it and the witnesses to be examined for the purpose of proof of the custom. The appellate Judge, to see that no prejudice is caused to the petitioner, has given her an opportunity to challenge this evidence by allowing her to lead rebuttal evidence. It thus appears that the learned Appellate Judge has rightly come to the conclusion that the opponent should be given an opportunity to lead evidence referred to by him in detail, in para 10 of his judgment. He has rightly come to the conclusion that the petitioner must be given a right to lead additional rebuttable evidence by re-calling the witnesses already examined or by examining new witnesses to rebut the additional evidence led on behalf of the opponent. That part of the order is quite correct. It cannot be said that the learned appellate Judge has acted with material irregularity or has committed an illegality in the exercise of his jurisdiction. Really speaking, such an order cannot be interfered with in the exercise of the revisional jurisdiction of this Court under Section 115 of the Civil Procedure Code, (which will be hereinafter referred to as the Code). Even on merits, I have found that order to be quite correct.
16. The next important question for consideration is whether the learned appellate Judge was justified in resorting to Section 151 of the Code and in setting aside the entire judgment and decree and remanding the suit to the trial Court for fresh disposal.
17. Mr. Zaveri urged that this was not a case where a remand could have been ordered under Order 41, Rule 23 of the Code, the suit having been not disposed of on a preliminary point. That position is also not disputed by Mr. J.B. Patel, appearing for the opponent. It is also an admitted position that the present case is also not covered by the provisions of Order 41, Rule 25 of the Code. It is an admitted position that the case falls under clause (a) of Rule 27, sub-rule (1) of Order 41 of the Code. That rule reads:
'(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'. The learned appellate Judge has come to the conclusion that this opponent was wrongly refused to lead certain evidence which he wanted to lead. It is, therefore, evident that the present case falls under that clause (a) of Rule 27, sub-rule (1) of Order 41 of the Code.
18. Sub-rule (2) of Rule 27 of O.41 of the Code reads:
'(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission'.
The appellate Court has recorded the reasons for allowing the opponent to lead additional evidence.
19. Rule 28 of Order 41 of the Code reads:
'Wherever additional evidence is allowed to be produced, the Appellate Court may either take such evidence, or direct the Court from whose decree the appeal is preferred, or any other subordinate Court, to take such evidence and to send it when taken to the Appellate Court'.
Provision of this Rule 28 of Order 41 of the Code clearly envisages that when such additional evidence is allowed to be produced, it is the Appellate Court which may take such evidence or it may direct the trial Court or any other subordinate Court to take such evidence and to send it when taken, to the appellate Court. It does not envisage setting aside the entire decree and sending the matter back to the trial Court for fresh disposal. It is, therefore, evident that there is an express provision made in this Order as to what is to be done when such additional evidence is allowed to be produced.
20. Rule 29 of Order 41 of the Code reads:
'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'.
These provisions have also been complied with in the present case as the learned appellate Judge has clearly mentioned in his order that the persons to be examined are the Taluka Magistrate, the writer and the attesting witnesses of the Fargati-deed, Ex. 11/1. Those witnesses are for the proof of the alleged divorce-deed, on which mainly the defence is founded. He has also specified that other additional evidence allowed to be led is the evidence of witnesses who are to be examined on the customary divorce i.e. custom regarding the divorce. The opponent has been directed to give a list of such witnesses in advance. It is, therefore, evident that the learned appellate Judge has specified the points to which the evidence is to be confined. The petitioner has been given an opportunity to lead rebuttal evidence. It is, therefore, evident that the order passed is not in contravention of this Rule 29 of Order 41 of the Code. The contravention is of the provisions of Order 41, Rule 28 of Code.
21. Mr. Zaveri urged that when there is a specific express provision found in this Order 41 of the Code in regard to what has to be done when additional evidence is allowed to be produced, the Court cannot resort to its inherent powers under Section 151 of the Code. In support of his argument, he invited my attention to several decisions.
22. In Mahendra v. Sushila, AIR 1965 SC 364, in paras 200, 201 and 202, at pages 398 and 399, the Supreme Court has considered this question. The relevant observations made therein are:
'No doubt, an appellate Court has the power under Section 107 of the Civil Procedure Code to remand case or to frame issues and refer them for trial, or to take additional evidence or require such evidence to be taken. But the exercise of these powers is regulated by the provisions of Order 41, Rules 23 to 25 and 27. Under Rule 23, an appellate Court has the power to remand a case where the suit has been disposed of by the trial Court upon a preliminary point and its decision is reversed by the appellate Court. Rule 24 provides that where the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, it may do so and may proceed wholly upon the ground other than that on which the appellate Court proceeds. For this purpose it can also resettle the issue if it finds it necessary so to do. A power to frame additional issues is conferred by Rule 25..................Rule 27 deals with production of additional evidence in the Appellate Court and prescribes the conditions upon which additional evidence can be allowed to be adduced in the Appellate Court.
Rule 25 circumscribes the powers of the Appellate Court to frame an issue and refer the same for trial to the Court below, if need be by taking additional evidence, and permits it to adopt this course only if (a) the trial Court had omitted to frame an issue, (b) try an issue or (c) to determine any question of fact which appears to the Appellate Court essential to the right decision of the suit upon merits. In this case, the High Court has purported to exercise its powers upon the ground that proper issues were not framed by the trial Court. I have already indicated above that the content of the two additional issues framed by the High Court is to be found in three of the issues raised by the City Civil Court. Therefore, there was no scope for the exercise by the High Court of its power under Rule 25. No doubt, the High Court has made no reference to Rule 25 when it framed the additional issues and sent them down for a finding; but its action must be referable to Rule 25, because that is the provision of law which deals with the question of remitting issues for trial to the trial Court. I may add that in view of the express provisions of this rule the High Court could not have had recourse to inherent powers, because it is well settled that inherent powers can be availed of ex debito justitiae only in the absence of express provisions in the Code'.
In view of these clear observations made by the Supreme Court, Mr. J.B. Patel's argument that the Court could resort to the exercise of its inherent power under Section 151 of the Code in a case like the present case where the trial Court had shut out important evidence and the opponent thereby was prejudiced by not putting forward important material evidence for consideration before the Court, cannot be accepted.
23. In Purapabutchi Rama Rao v. Purapa Vimalakumari, AIR 1969 Andh Pra 216, a Single Judge of the Andhra Pradesh High Court had to deal with a similar question. He has referred to several decisions of the Supreme Court and other Courts and the relevant provisions of the Code in paras 9 to 15 at pages 219 and 220, and summarised the position in para 16 as under:
'(1) The inherent powers of the Court are very wide and residuary in nature and not controlled by any other provisions in the Code; but they cannot override the express provisions of the law.
(2) The inherent powers under Section 151, Civil P.C. have to be sparingly exercised and that too, only to meet the ends of justice, in appropriate cases, where there are no specific express provisions in the Code of Civil Procedure to meet such a contingency...................'
24. In Veerabhadrappa v. C. Venkatappa, AIR 1961 Andh Pra 226, a Single Judge of the Andhra High Court has observed;
'An Appellate Court can remand a suit for fresh disposal to the Court of first instance only in the circumstances laid down in Order 41, Rule 23, Civil Procedure Code, and in no other. If it decides to receive additional evidence in appeal under O. 41, Rule 27, Civil Procedure Code, it may itself record the additional evidence or direct the trial Court or any subordinate Court to record the same and send up the evidence or direct the trial to Appellate Court, which must then proceed to hear and dispose of the appeal in the light of the fresh evidence and the evidence already on record in accordance with Rules 28 to 30 of Order 41, Civil Procedure Code. The appeal continues to remain on the file of the Appellate Court till the additional evidence is received by it and the appeal heard and disposed of. There can be no question of ordering a remand in this situation'.
I amendment in entire agreement with the ratio of this decision and the course indicated therein ought to have been followed by the learned Appellate Judge.
25. In Ratilal Sakarlal v. Gandabhai Muljibhai, 3 Guj LR 40 = (AIR 1962 Guj 61), R.B. Mehta, J., had also taken a similar view. It is observed:
'Where the trial Court has decided the case not on a preliminary issue but on merits and when the matter comes in appeal, it is not correct for the first Appellate Court to reverse the decree of the trial Court and to remand the whole case back to the trial Court but that the first Appellate Court should act under the provisions of Order 41 Rule 25 of the Code of Civil Procedure'.
26. Similar view was taken by Justice Miabhoy (as he then was) in Patel Shanabhai Galabhai v. Chaturbhai Lallubhai, (1962) 3 Guj LR 651.
27. In Civil Revn. Appln. No. 633 of 1965, D/-11-11-1965 (Guj), Divan, J., has also taken a similar view.
28. In Civil Revn. Appln. No. 172 of 1965, D/-17-6-1968 (Guj), D.A. Desai, J., had to deal with a similar question as has been agitated before me. After referring to the relevant provisions of Order 41, Rules 27 and 28 and the decisions of the Gujarat High Court referred to above, my learned brother observed:
'The only thing proper for the Appellate Court to do was to have retained the appeal on its own file and either to have taken the evidence refused by the trial Court itself or to have directed the trial Court to take the evidence which was refused by it'. In my opinion, the Appellate Court was in error in setting aside the decree of the trial Court and remanding the matter to the trial Court after setting aside the decree for fresh disposal. The learned Appellate Judge ought to have kept the appeal to his file and either ought to have taken the evidence refused by the trial Court itself or ought to have directed the trial Court to take the evidence which was refused by it and which the Appellate Court thought that such additional evidence should have been allowed to be produced. That part of the order, namely, setting aside that decree and remanding the matter to the trial Court for fresh disposal in accordance with law, therefore, cannot be sustained. In this view of the matter, the order of the learned District Judge, setting aside the judgment and the decree of the trial Court is set aside. His order remanding the suit to the trial Court for fresh disposal is set aside the rule to that extent is made absolute and the rule for the remaining part of the Order of the Appellate Court, namely, that the opponent should be allowed to lead additional evidence mentioned by the Appellate Court in para 10 of its judgment and the petitioner will have a right to rebut that additional evidence led by the opponent, remains intact. The rule for that remaining part of the order of the Appellate Court is discharged.
29. The revision petition is partly allowed. The Appellate Court is directed to retain the appeal on its file. The Appellate Court is directed that it may either take the aforesaid additional evidence by itself or it may direct the trial Court to take that evidence and to send it when taken to the appellate Court as contemplated by the provisions of Order 41, Rule 28 of the Code. Parties to bear their respective costs in this revision petition. Rule is modified.
30. Petition partly allowed.