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Nekkanti Swami and ors. Vs. Nekkanti Venkatarayudu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1943Mad726; (1943)2MLJ312
AppellantNekkanti Swami and ors.
RespondentNekkanti Venkatarayudu
Excerpt:
- .....the learned district judge thought that if the main question in issue was to be properly decided, raman's evidence was indispensable; and so he admitted the appeal and remanded the suit for fresh disposal instructing the trial court to treat raman as a court witness.2. the procedure adopted by the learned district judge was incorrect. there is no provision for the examining of court witnesses by trial courts; but there is a specific provision in order 41, rule 27(1)(c) for the taking of evidence by the appellate court. the district judge had two alternatives. he could either have recorded the evidence himself; or he could have asked the trial court to record the evidence and send it to him. he should not, however, have allowed the appeal; but should have kept it pending on his file and.....
Judgment:

Horwill, J.

1. A suit was brought on a promissory note; and the defendants raised the point that there was no consideration for the promissory note; for that promissory note and another promissory note formed part of an arrangement whereby opposite factions in the village on the eve of an election wanted to temporarily settle their differences. Each side examined one attestor; but a person named Raman, whose evidence would undoubtedly have been important, was not examined by either side. Neither side was apparently willing to take the responsibility of examining him. The suit was dismissed. In appeal, the learned District Judge thought that if the main question in issue was to be properly decided, Raman's evidence was indispensable; and so he admitted the appeal and remanded the suit for fresh disposal instructing the trial Court to treat Raman as a Court witness.

2. The procedure adopted by the learned District Judge was incorrect. There is no provision for the examining of Court witnesses by trial Courts; but there is a specific provision in Order 41, Rule 27(1)(c) for the taking of evidence by the appellate Court. The District Judge had two alternatives. He could either have recorded the evidence himself; or he could have asked the trial Court to record the evidence and send it to him. He should not, however, have allowed the appeal; but should have kept it pending on his file and considered the effect of the additional evidence after it was taken by him or sent to him by the trial Court.

3. Mr. Raghava Rao contends that the evidence of Raman was not really necessary; but as the evidence in the suit was so meagre, and Raman seems to be an important witness, I am not prepared to say that the learned District Judge would not be, justified in examining Raman.

4. The appeal is allowed and the order of remand set aside. The costs of this appeal will abide the result.


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