1. The learned Subordinate Judge on an application by respondents 1 and 2 (appellants in his Court) made an order on 29th February 1928, allowing further evidence to be taken on their behalf, i.e., to re-call P.W. 3 in order to get his accounts produced and to examine three new witnesses who had not been examined at all at the trial. Immediately after this order the petitioner (respondent 1 in the lower Court) by his lawyer asked that if additional evidence was to be allowed to respondents 1 and 2, he also might be allowed to adduce further evidence to rebut that evidence. This also the learned Judge allowed by another order but without asking the petitioner or knowing from him what evidence he proposed to tender.
2. These petitions are directed against the first of the two above orders on which the second also depends. It is now settled that the appellate Court is empowered on the application of a party for any substantial cause to permit additional evidence to be taken under Order 41, Rule 27 (1)(b), Civil P.C.: see Indrajit Pratap Bahadur Sahi v. Amar Singh A.I.R. 1923 P.C. 128. Though the power is there, it should be used sparingly and on grounds which can be called 'substantial.' Ordinarily it would not be desirable to hear an application for further evidence under this provision until the appellate Court had heard the appeal or considered the evidence already on record with a view to see whether substantial grounds exist in the interests of justice to allow some lacuna to be filled up or some matter to be cleared up. If such safe-guards were not adopted every appellant would press the appellate Court to allow him to cure the effects of his own laches by plea of hardship and there would be no inducement for parties to exercise diligence in producing all available evidence at the trial.
3. The allowance of fresh oral evidence unless under the most exceptional circumstances should thus be discouraged. In my opinion the learned Subordinate Judge was guilty of material irregularity in not applying any of the required safeguards at all before allowing further evidence. His 'order shows that the appellant had not asked for the production of P.W. 3,'s accounts in the last summons to that witness nor had he even cited two out of the three new witnesses. The appeals had not been heard. The learned Judge was not in a position to say in what way the evidence was intended to fill up any gap; nor does it show that there was any guarantee that the witnesses were of such status that their evidence could be safely relied upon to be true. The result of his orders taken together was that for no apparent reason except that the appellant urged that he had been negligent in the Court below, he was allowed to re-open the whole case and when he got such an advantage the respondent got a like advantage without the appellate Court even knowing what was the evidence to be tendered. The orders of the Subordinate Judge must be and are set aside. Nothing in this order should be deemed to affect the power of the Subordinate Judge if at a later stage after hearing the appeal, ho thinks it necessary in the ends of justice and for substantial grounds to act under Order 41, Rule 27 (1)(b).
4. The petitioner will have his costs in C.R.P. No. 363 of 1928 from respondent. 2.