1. This second appeal arises out of a suit brought for the recovery of a sum of Rs. 4,387-4-0 as arrears of rent and the Jenmabhogam due to the plaintiff's tarwad under a kaichit dated 28th August, 1929, executed by defendants 1 and 2 in favour of the plaintiff's tarwad and interest thereon. The main plea of the defendants was a plea of discharge and in support of it they produced three receipts, Exs. II, III and IV and a letter Ex. V. All these documents bear the signature of Chappunni Valia Nair, a former karnavan of the plaintiff's tarwad, who died sometime in June, 1939 and was succeeded by the plaintiff. The defendants also say that there is a signature of the plaintiff himself on Ex. II. The plaintiff denied that there was any payment as recited in the said receipts. He denied that he ever signed on Ex. II. He further pleaded that these receipts must have been granted by the kariasthan at the time one Krishna Menon to defendants 1 and 2 as a result of fraud and collusion between them and him. The learned Subordinate Judge of South Malabar on a consideration of the oral and documentary evidence tendered by both the parties, held against the defendant's plea of discharge and granted a decree to the plaintiff. The defendants appealed to the District Judge, South Malabar. After hearing arguments in part, the learned Judge summoned Krishna Menon, the kariasthan as a Court witness and allowed him to be cross-examined by both sides. He took into account his evidence along with the other evidence already on record and disagreeing with the trial Court, dismissed the plaintiff's suit.
2. Among other grounds, Mr. Sitarama Rao for the plaintiff-appellant in the second appeal put forward as a main ground that the lower appellate Court was not entitled in law to summon and examine Krishna Menon and the conditions requisite under Order 41, Rules 27 and 29 were not fulfilled in this case. It is common ground that the only provision which applies to this case is Order 41, Rule 27, Clause (c)(as amended in Madras) which is as follows:
(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.
3. Rule 29 of Order 41 is as follows:
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.
4. It is not disputed that at the time when the learned District Judge decided to examine Krishna Menon as a Court witness, he did not pass any order giving any reasons for the course that he was taking. The diary for the case shows as against 2nd September, 1943, the following entry:
Respondent's arguments also heard in part. The appeal is posted to 7th September, 1943, to examine T. Krishna Menon as a Court witness. Emergent summons will be issued to him.
5. On 7th September, 1943, Krishna Menon was examined as a Court witness; the arguments were completed the next day and judgment was reserved. The judgment was finally pronounced on the 21st September, 1943 and in paragraph 5 of the judgment the learned Judge explains why he thought it was necessary to examine Krishna Menon. He says that he felt that the evidence on record was not sufficient to enable him to come to a conclusion on the point involved in controversy and that it was necessary to record the evidence of the erstwhile kariasthan, that is Krishna Menon, who had not been examined either by the plaintiff or by the defendants in the lower Court or by the lower Court as a Court witness although it was definitely alleged on the plaintiff's side and found by the lower Court on the materials on record that the receipts had been granted by him as a result of fraud and collusion between him and the defendants. Admittedly, except in this paragraph, there is nowhere else any record of any reasons. Obviously, the procedure indicated in Order 41, Rule 29 was not followed. He nowhere specified the points to which the evidence was to be confined before the examination took place and I do not agree with the respondents' counsel that the learned Judge ought to be presumed to have summoned him to be examined on the points which would arise on the plea of the plaintiff that the receipts were fabricated by the witness and defendants 1 and 2.
6. Apart from this irregularity, I am of opinion that the lower appellate Court was not justified in using the extraordinary power conferred on an appellate Court under the provision and the present case comes within the scope of the ruling of the Judicial Committee in Manmohan Das v. Musammat Ramdei (1931) 34 L.W. 7 . In that case the question at issue was whether a deed of gift executed by one Behari Lal in favour of his Wife represented a genuine transaction or was fictitious. The Subordinate Judge found that the transaction was fictitious. From the evidence adduced before the Subordinate Judge it appeared that one Mr. Dube, a barrister of the District Court, had been much involved in the transactions under examination. He had not been called as a witness by either party. When the case came before the High Court on appeal, the High Court called Mr. Dube as a witness for the Court. The High Court in that case, as the District Judge in this case, did not pass any order at the time they decided to summon Mr. Dube for examination. In the judgment of the High Court, there occurred the following passage:
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 what we have done, namely, send for Mr. Dube and examine him as a Court witness.
7. It may be mentioned in passing that this is exactly what the learned District Judge in this case thought, namely, that the Subordinate Judge himself might have examined Krishna Menon as a Court witness. Their Lordships of the Judicial Committee after referring to the provisions of Order 41, Rules 27 and 29, say 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.
8. Mr. K. Bhashyam, the learned advocate for the respondents, said that their Lordships of the Privy Council were influenced by the fact adverted to last by them, namely, that Mr. Dube was called at the outset of the hearing in the High Court and not at a later stage after an examination of the evidence already on record. I do not agree with him. This reason is given only as an additional reason and it is clear to my mind that even without this fact, their Lordships would have come to the same conclusion, namely, that the introduction of Mr. Dube's evidence was highly irregular. It will be apparent how the case before the Judicial Committee is in every respect similar to the present case. What the learned District Judge apparently thought was that as Krishna Menon (like Mr. Dube) was a person who had been much involved in the transaction under examination, it was desirable to have his evidence.
9. In the same judgment in dealing with the examination of Behari Lai as a Court witness, their Lordships of the Privy Council strongly condemn the procedure of the trial Court in summoning that witness as a Court witness. It is in evidence in this case that this Krishna Menon was as a matter of fact summoned as a witness for the defence but the defendants apparently for reasons best known to them, decided not to call him (vide evidence of D.W. 3).
10. Mr. K. Bhashyam for the respondents urged that the learned Judge had said that the evidence of Krishna Menon was necessary to enable him to come to a conclusion on the point in controversy and therefore it is not open to me to take objection to the examination of Krishna Menon as an additional witness. But the fact that a Court uses words which are to be found in the enactment which gives it power to do a particular act or follow a particular procedure will not ipso facto be sufficient justification of its act or order. In this case the reasons given by the District Judge in paragraph 5 cannot amount to a fulfilment of the conditions imposed on the Court by Order 41, Rule 27 (c). In this connection I may also refer to the decision of a single Judge of the Lahore High Court in Roshan Lai v. Charan Das A.I.R. 1937 Lah. 115 but I do not consider that there is anything in that case which compels me to hold in any particular way. Apparently the learned Judge in that case was satisfied with the reasons given by the lower appellate Court because he says that the Subordinate Judge gave good reasons for calling a witness. The decision of a Division Bench of this Court in Narasimhamurthi v. Hay at Khan : AIR1940Mad911 does not carry us any further than the ruling of the Privy Council in Manmohan Das v. Musammat Ramdei(1931) 34 L.W. 7 .
11. As in my opinion the lower appellate Court ought not to have admitted the additional evidence of Krishna Menon and therefore that evidence must be entirely discarded and as it also appears to me that the judgment of the lower appellate Court was materially influenced by this incompetent testimony, the only course left to me is to remand the appeal to the District Court for fresh disposal according to law. The costs of this second appeal will abide and follow the result of the appeal. The Court-fee paid by the appellant will be refunded to him.
12. Leave refused.