1. The appellant was the defendant in a suit on a promissory note. One of the points inconsistent with his story of discharge was the fact that though he had a receipt, he had not got the original promissory note. His explanation was that at the time when the panchayat settled the terms of the discharge and the receipt was given, the plaintiff had said that the promissory note was with his vakil but was not available. In cross-examination it was elicited that the vakil in question was the same gentleman who was conducting the case for the plaintiff. Though the defence evidence was taken first, the plaintiff did not thereafter examine his vakil with reference to the custody of the original promissory note. When the appeal had been pending for some time there was an application dated the 22nd November, 1933, by the plaintiff for admission of additional evidence by examination of the vakil in question in order to show that the promissory note was at that time in his (plaintiffs') custody. On that application the order was 'By consent the appellant will be allowed to examine M.V. Subramania Aiyar'. The rest of the order is irrelevant for the present purpose. On the 11th December, 1933, the present appellant applied for review of this order alleging that his advocate had exceeded his authority in consenting to the additional evidence. The learned District Judge quite correctly rejected the review application having regard to the fact that the defendant was himself present in Court when the consent order was made. In the result the learned District Judge found on a review of the facts including the evidence of the vakil that the defence story of discharge was untrue and he decreed the suit.
2. Now the main argument in appeal here is that the order of the learned District Judge allowing the taking of further evidence in appeal contravened the provision of Order. 41, Rule. 27 (1)(b), Civil Procedure Code, and that the Court had no jurisdiction to pass such an order. Mr. Bashyam Aiyangar has referred to the rulings of the Privy Council in Kessowji Issur v.G.I. P. Railway Co (1907) 17 M.L.J. 347 : L.R. 34 IndAp 115. : I.L.R. 31 Bom. 381 (P.C.) and Parsotim Thakur v. Lal Mohar Thakur the effect of which rulings is that the Court has no jurisdiction in appeal to admit additional evidence except on the grounds laid down in Rule. 27 and that the evidence such as is contemplated in Rule. 27 (1)(b) can only be admitted when the appellate Court itself requires that evidence to enable it to pronounce judgment. He argues that in such circumstances the consent of the parties is irrelevant and that only grounds which could justify the Court in calling for this further evidence must be the Court's own considered opinion that such evidence is necessary to enable it to pronounce judgment. It is contended that in the absence of such a considered opinion the Court has no jurisdiction to call for further evidence and that consent cannot confer jurisdiction which doesnot exist otherwise. Now, it must be conceded that the record made by the learned District Judge of his reasons for calling for additional evidence does not strictly comply with the terras of Order. 41, Rule. 27. It must, however, be pointed out that in addition to the very brief consent order there is a paragraph in the judgment in the course of which the learned District Judge points out the relevance of the evidence of the vakil and, observing that there must have been some embarrassment to the gentleman in question by the way in which the defence witness brought his name forward only in cross-examination, expresses the opinion that the evidence of this gentleman was important and was therefore allowed under Order. 41, Rule. 27 by a consent order which was recorded. It must be clearly stated that the mere fact that evidence is important is not of itself a sufficient ground for admitting that evidence in appeal and it would have been very much better had the learned District Judge stated his reasons for admitting this evidence in terms which would indicate clearly that he had applied his mind to those considerations which according to Order. 41, Rule. 27 must govern the Court in passing such an order. At the same time I am of opinion that the consent of the parties cannot be overlooked in considering whether the District Judge's order is a proper order in the circumstances. Granting that consent cannot confer jurisdiction where no jurisdiction exists, the position is somewhat different when there is jurisdiction, but that jurisdiction can only be exercised on particular grounds stated in writing. In my opinion the consent of the parties may be treated as an admission by both parties that those grounds existed. This admission does not strictly absolve the learned District Judge from the requirement of satisfying himself as to the necessity for this evidence; but it may to a large extent cover the defects in the record of the reasons for the order. There is, moreover, good authority for the view that an objection such as has been taken by the appellant to the admission of this evidence cannot be entertained, at all in view of the consent before the learned District Judge. It is true that the ease in Kessowji Issur v.G.I.P. Railway Co (1907) 17 m.L.J. 347 : 1907 L.R. 34 IndAp 115 : I.L.R. 31 Bom. 381 (P.C.) in which the Judicial Committee adversely commented on the procedure of the learned Judges of the High Court in using their own personal observations as evidence in appeal in a manner not contemplated by Order. 41, Rule. 27 was a case in which the counsel on both sides had agreed to the procedure adopted; but that was not quite the same as a consent by the parties to a procedure which in itself is a perfectly legitimate procedure, such as is contemplated in Order. 41, Rule. 27, where the occasion for it exists. There is a definite ruling of the Privy Council in Jagarnath Pershad v. Hanuman Pershad in which their Lordships have clearly held that such a consent makes it not open to argument that the admission of evidence in appeal was improper. Mr. Bashyam Aiyangar has endeavoured to distinguish this case as one falling under Sub-clause (a) of Rule. 27 (1) and not under Sub-clause (b), and it has been so distinguished apparently in a Patna case reported in Uchant Ahir v. Basawan Ahir (1920) 55 I.C. 226. But on a perusal of the judgment of the Privy Council, I am of opinion that this distinction is based on a misunderstanding of the facts of that case. What appears in that case is that there was an application for probate. The propounder of the will tendered two witnesses for cross-examination; the caveator objected to this procedure but the objection was overruled and thereupon the caveator declined to cross-examine the witnesses. In appeal the evidence of these witnesses was admitted by consent. Now this was definitely not a case in which evidence had been rejected by the trial Court and admitted in the appellate Court; it was a case in which the evidence, though available, had not been adduced in the trial Court, but was considered necessary by the appellate Court; that is to say, it is a case falling under Sub-clause (b) of Rule. 27 and not under Sub-clause (a) and the decision of the Judicial Committee that in such circumstances it is not open in a subsequent appeal to question the correctness of the admission of this evidence, is an authority against the position taken up by the appellant in this case. I am therefore of opinion that though one might argue that this evidence was not really necessary or of very great importance, it is not possible to hold in the circumstances that the learned District Judge did not honestly form the opinion the evidence was necessary; and even if the reasons recorded by the learned District Judge be deemed inadequate, the consent of the appellant to the examination of the further witness precludes him from questioning the admissibility of that evidence in subsequent proceedings. That finding concludes the appeal.
3. I must, however, in justice to a witness observe that the learned District Judge has fallen into an unfortunate error in describing D.W. 6 as a dismissed karnam. There is no foundation for this aspersion on D.W. 6 in the record and the error seems to have been due to a pure misreading of the evidence. In the result the appeal is dismissed with costs.
4. Leave to appeal is refused.