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Samiappan Vs. Ramaswamy Gounder - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1974)2MLJ392
AppellantSamiappan
RespondentRamaswamy Gounder
Cases ReferredIn Ram Dhani v. Nagar Mal A.I.R.
Excerpt:
- - the learned subordinate judge has not referred to the decisions really applicable to this case like the ones which i have quoted above, which themselves follow the prior decisions of this court in which the position was really settled......the trial court dismissed the suit. the plaintiff preferred an appeal which was heard by the learned subordinate judge of erode, as a.s. no. 76 of 1971. long after the appeal was filed, the plaintiff filed i.a. no. 62 of 1972 for reception of additional evidence, namely, that exhibit a-1 should be sent for examination by a handwriting expert, after taking a photostat copy of the signature of the defendant. the judgment of the learned subordinate judge, which is under appeal, shows that the only point which was argued by the learned counsel for the plaintiff was that even in the trial court a similar application had been made, but had been rejected. it was mainly on that ground that the learned subordinate judge set aside the judgment of the learned district munsif and remanded the.....
Judgment:
ORDER

K. S. Venkataraman, J.

1. This is an appeal against an order of remand. The suit was instituted by the plaintiff on the allegations that on the morning of 19th November, 1967 he advanced a sum of Rs. 2,000 to the defendant, that later on the same day the defendant executed a 'voucher' (Exhibit A-1) promising to pay the said sum with interest at the rate of twelve per cent. per annum, that he defaulted to pay and that therefore the plaintiff filed the suit for recovery of the amount, limiting his claim for interest to six and one-fourth per cent. per annum.

2. The defendant denied that he took any money from the plaintiff and he further denied that the signature in Exhibit A-1 was his. He contended that the suit had been falsely laid against him because of enmity which was itself due to the fact that the defendant helped a Harijan girl who filed a complaint against the plaintiff's son for alleged rape.

3. The plaintiff examined himself as P.W. 1, and the writer of Exhibit A-1 as P.W. 2, who stated that he wrote Exhibit A-1 at the instance of the plaintiff, but added that he did not know whether the defendant had signed in Exhibit A-1. The defendant examined himself as D.W. 1 and denied the borrowal and the execution of Exhibit A-1.

4. On the basis of the above evidence the trial Court dismissed the suit. The plaintiff preferred an appeal which was heard by the learned Subordinate Judge of Erode, as A.S. No. 76 of 1971. Long after the appeal was filed, the plaintiff filed I.A. No. 62 of 1972 for reception of additional evidence, namely, that Exhibit A-1 should be sent for examination by a handwriting expert, after taking a photostat copy of the signature of the defendant. The judgment of the learned Subordinate Judge, which is under appeal, shows that the only point which was argued by the learned Counsel for the plaintiff was that even in the trial Court a similar application had been made, but had been rejected. It was mainly on that ground that the learned Subordinate Judge set aside the judgment of the learned District Munsif and remanded the suit, permitting the plaintiff to take photostat copies of the signature of the defendant and sending Exhibit A-1 to the handwriting expert for comparison with the admitted signature of the defendant. Aggrieved by this order of remand, the defendant has preferred this appeal.

5. The main contention of Mr. K.N. Balasubramaniam, learned Counsel for the appellant, is that, assuming that the learned Subordinate Judge was justified in allowing the reception of additional' evidence, that was not a ground which would justify a remand, but the proper course for the learned Subordinate Judge was to take the Additional evidence himself or have it taken by the trial Court, but to keep the appeal itself on his file and dispose it, of. The learned Counsel cites the decisions of this Court in Achammal v. Krishna Naidu : (1969)1MLJ126 and Annamalai v. Narayanaswami Pillai : AIR1972Mad316 in support of his contention.

6. Learned Counsel further submits that the petition was filed in the trial Court only at a late stage after the evidence was over and arguments were heard. This is mentioned in the counter which the defendant filed in I.A. No. 62 of 1972. The learned Counsel points out that in the grounds of appeal in A.S. No. 76 of 1971 no ground was taken that the learned District Munsif had improperly refused to receive the evidence which the plaintiff sought to adduce.

7. It is clear from the decisions cited by Mr. Balasubramaniam, which themselves proceed on earlier decisions of this Court, that, even assuming that the learned Subordinate Judge was right in allowing additional evidence to be taken, that would not justify an order or remand. Normally the mere fact that additional evidence is required would not at all justify an order of remand. This is such a case. Two decisions have been cited by the learned Subordinate Judge in support of his order of remand; Gora Chand v. Basanta Kumar (1911) 12 I.C. 684 : (1911) 15 C.L.J. 258 and Ram Dhani v. Nagar Mal A.I.R. 1941 Oudh. 561. In Gora Chand v. Basanta Kumar (1911) 12 I.C. 684 : (1911) 15 C.L.J. 258 the power of remand was not confined, as it is confined in Order 41, Rule 23 of the Code of Civil Procedure, with its Madras amendment effected in P. Dis. No. 778 of 1930. It has been pointed out in the decisions cited that the power of remand has been circumscribed by the above amendment. In Ram Dhani v. Nagar Mal A.I.R. 1941 Oudh 561 the appeal was kept on the file of the appellate Court and only a finding was called for, though the order calling for the finding was termed as an order of remand. The point which was argued seems to have been that the appellate Court itself should have taken the additional evidence. No reference however, is made to Order 41, Rule 28 of the Code of Civil Procedure. Anyway, the point to be noted is that the appeal was kept on the file of the appellate Court. The learned Subordinate Judge has not referred to the decisions really applicable to this case like the ones which I have quoted above, which themselves follow the prior decisions of this Court in which the position was really settled.

8. Even regarding the other point on the propriety of allowing additional evidence, there is substance in the contention of Mr. Balasubramaniam that the petition for receiving additional evidence was itself filed in the trial Court only at a late stage. In other words, this is not therefore a case where it can be said within the meaning of Order 41, Rule 27 (a) that the trial Court refused evidence which ought to have been admitted, and it cannot be said that, even if the petition was filed late, it ought to have been admitted by the trial Court. This point also may be examined by the learned Subordinate Judge, though if in the exercise of his discretion, he wants to allow the plaintiff to have this opportunity, this Court would not stand in his way.

9. The order of the learned Subordinate Judge is therefore set aside and he is directed to dispose of the appeal himself according to law and in the light of the observations contained in this judgment. Even if he considers that the additional evidence should be recorded, he should keep the appeal on his file. There will be no order as to costs, on this appeal.


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