1. The order appealed against is one of remand. The question was whether, as the eleventh defendant alleged, a previous decree was invalid, because it had been obtained owing to the negligence of her then guardian. The first objection to this order of remand is that the plea of negligence was untenable in as much as, if the eleventh defendant wished to plead that she was not bound by the previous judgment she should have brought a regular suit to have it set aside. That does not appear to be in accordance with Section 44 of the Indian Evidence Act or the construction of that provision in Rajib Panda v. Lakhan Sendh Mahapatra I.L.R. (1900) Cal. 11. It is urged that Section 44 is not applicable when the previous judgment has been obtained owing to gross negligence; and it is true that only fraud or collusion and not gross negligence is mentioned in it. We do not however think that the principle involved is inapplicable to cases of gross negligence. It may be observed that such cases were referred to as on the same footing with cases of fraud in Jogeshwar Narain Singh v. Roy Radha Raman (1913) 16 I.C. 543 ; and we can see no reason on principle why any distinction should be made between the one class of cases and the other.
2. On the merits we think that the lower appellate Court has stated its reasons very badly for collusions, which are correct. The first question was whether the District Munsif was right in not coming to a conclusion on the plea of gross negligence. There is no doubt that this plea was not taken by the 11th defendant in any distinct language in her written statements were exceedingly general, the injunction of the Code that allegations of fraud and the like should be made specific, if they are made at all, being entirely neglected. On these pleadings however, two very general issues were framed, one of which the fourth, was quite wide enough to cover the plea of gross negligence; and, a most important consideration, there is no doubt that the parties had in mind the plea of gross negligence at the trial and that the i ith defendant was attempting to produce evidence in support of it, which was rejected, not because the matter was not agitated in the suit, but because the District Munsif did not think that that evidence was of any value. In these circumstances we hold that the case of gross negligence was open and that the Munsif should have found definitely on it. The lower appellate Court's order therefore remanding the suit for re-trial on that point must be supported. It had already directed the Munsif to take an additional written statement from the nth defendant. We supplement that direction by saying that the negligence relied on should be described in as definite a manner as possible and that a definite issue as to the gross negligence should be framed before the retrial begins.
3. The lower appellate Court's order is next that in the retrial certain documents shall be admitted in evidence and considered. It is not clear on what grounds exactly it founded that direction; for it has not gone into the question whether those documents were rejected on any legal ground by the Munsif. We have done so with the result that we are not able to find any objection valid under the Evidence Act to the admission of those documents established. They were apparently produced before the District Munsif; but he dismissed them with the remark that they were prior to the date of a certain compromise and that the father of the alleged adopted son, one Sanyasi Naidu, could not have known of them, and elsewhere commented, on the absence of documents to show that Sanyasi recognised his alleged adopted son as his son. We that among the documents there are some which would support this part of the case. In any event however the documents, as the Munsif himself says, would show that Chellammal the widow of Sanyasi after his death recognised the alleged adopted son. That in our opinion would certainly be a relevant fact and it would of course be for the trial Court to estimate its importance. The District Munsif throughout has not shown that there is any provision of the Evidence Act under which he was justified in excluding these documents. He was not justified in excluding them, because they would not prove a particular part of the case, when they were relevant to establish another part. This being so, this portion also of the lower appellate Court's order was correct.
4. The appeal accordingly fails an is dismissed with costs (it the nth defendant (the 1st respondent). The Civil Revision Petition is dismissed. No order as to costs.