1. This a revision against an order of the Dist. J. of Udaipur, dated 24-4-1950.
2. The petitioner, Mst. Nani Bai, sued Mithulal for ejectment from a shop & arrears of rent on the basis of a certain rent-note alleged to have been executed in favour of Gopalji Ratichand, & impleaded one Mohan Lal as deft, as the aforesaid tenant Mithulal alleged him to be the real owner & successor in title of Gopalji Ratichand. The tenant, Mithulal, set up the title of Mohan Lal as owner of the property on the basis of an alleged adoption by Nani Bai to her husband Onkarlal. Certain issues were struck by the trial Court, & it was found that the plff. was the successor in title of Gopalji Ratichand, & decreed the suit. On appeal by Mithulal & Mohan Lal, the learned Dist. J., was of opinion that certain documentary evidence filed by Mohan Lal had not been properly proved, & while holding that the appellant was not entitled to produce further evidence, directed the lower Court to examine certain witnesses as Court witnesses. The plff. has filed this revision, & it is contended that the lower Court had no jurisdiction to direct taking of additional evidence as the conditions requisite for the exercise of discretion under Order XLI, Rule 27, C.P.C., did not exist.
2. The learned counsel for the opposite party raised a preliminary objection that the revision was not maintainable. The question depends upon whether the Court had a discretion to direct taking of additional evidence or that the Court had no jurisdiction to pass the order which it did. It was contended by the learned counsel for the opposite party that on a certain date fixed for the evidence of the deft., a prayer for adjournment was made, which was refused & the evidence was closed, & therefore, the first appellate Court had jurisdiction under Clause (a) of Rule 27, to direct further evidence to be taken, which had been refused by the lower Court. The proposition of law is correct, but in the present case the learned Dist. J., did not act on this ground. In fact the Court has ordered that the opposite party having closed his evidence had no right to produce further evidence, & the witnesses were to be examined not as deft's witnesses but as Court witnesses. In other words, the lower Court purported to act under Clause (b) of Rule 27. Under this clause, the point which the lower Court had to consider was as laid down by their Lordships of the Privy Council in AIR (18) 1931 P C 143 'Parsotim Thakur v. Lal Mohar Thakur', that it is the requirement of the Court, & the new evidence should have a direct & important bearing on the main issue in the case. The fresh evidence is to be taken according to the order of the lower Court on the point of adoption of Mohan Lal, & the evidence directed to be recorded was in support of the proof of certain sale deed executed by Mohan Lal as son of Onkarlal. The evidence may show the conduct of Mohanlal himself, but is only remotely relevant on the question of adoption. The learned Dist. J., has pointed out that the plff. did not produce certain documents in her possession. But that would only be an occasion for making certain presumption against the plff. if the circumstances of the case so indicate. The lower Court has not at all indicated in its judgment that it was necessary for the appellate Court to require any witness to be examined to enable it to pronounce judgment; or that there was any substantial cause. The order of the Court below was, therefore, contrary to the express provision of law.
3. The revision is, accordingly, accepted, theorder of the lower Court is set aside, & the case isremanded to that Court for decision of the appealon merits. Costs of this Court will abide the resultof the appeal in the lower Court.