1. This appeal arises out of a suit for maintenance by a Mahomedan wife who is now a widow. The defence was that she was divorced in 1919 by her husband and the evidence was mainly directly to the factum of divorce. There was a remand by the District Judge who first heard the appeal for a decision on the question, 'what is the school of law governing the parties' and fresh evidence was allowed on this question. When the case was re-heard by the trial Court both parties agreed that they were governed by the Shafi-Sunni law and tie trial Court reiterated the previous finding that there was no divorce. In the course of the judgment he found it necessary to make observations regarding the failure of the defence to examine the Kazi alleged to have received the divorce letter and to have maintained the register of divorces and he observed that Ex. II, a register produced by the Mukri of the mosque, did not appear to be a regular book kept by the Kazi. When the matter came up again in appeal, there was a fresh District Judge who in the course of arguments appears to have decided to permit the defendants to examine the Kazi. On 15th November 1934 the B diary contains the following entry : 'Arguments closed for the present. Adjourned to 6th December 1934 to enable the appellants to examine Kadiar.' On the same day the defendants presented a petition supported by an affidavit requesting that the Kazi be summoned and examined, the only reasons given being that the Kazi was cited in the lower Court as a witness to prove the fact of divorce, that he did not appear in person and sent certain documents through the Mukri that his evidence was most material and that he could not be examined in the lower Court as he did not appear in person and the evidence on record therefore was to some extent incomplete. It does not appear that any notice of this petition was given to the plaintiff and the order consists of the one word 'allowed' written in the handwriting of somebody also, presumably a clerk, and initialed by the learned District Judge. The judgment contains the following reference to the admission of this further evidence in appeal:
In the course of the arguments it became clear that the most material evidence regarding the factum of divorce could be furnished only by the Kazi, to whom the deceased Athermankutti is said to have communicated a notice of the talak. In these circumstances the prayer of the learned Advocate for the appellants that the Kazi should be summoned and examined was granted.
2. Then later on the learned Judge observed:
His evidence fills up the serious gaps that existed in the previous evidence produced by the defendants and leaves no room for doubting that Ex. 2 as well as the new registers now marked Exs. 2(a) and 2(b) are genuine documents kept under the direction and supervision of the Kazi.
3. It is contended for the plaintiff, who is the appellant here, that the judgment of the learned District Judge is vitiated by the irregular admission of fresh evidence in appeal contrary to the provisions of Order 41, Rules 27 to 29, Civil P.C. It is to be noted that the fresh evidence admitted by the learned District Judge consisted not only of the oral evidence of the Kazi but also of two documents, for the admission of which there is no specific prayer or order or any reason given other than the passage from the judgment just quoted. Order 41, Rule 27 provides for the admission in appeal of documents wrongly rejected by the trial Court - a provision which has no application here - and also provides that further evidence may be admitted if 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. Rule 29 provides that 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 point so specified. These provisions have been the subject of many decisions, one of the most authoritative being the case in Parsotim Thakur v. Lal Mohar Thakur A.I.R. (1981) 18 P.C. 143 where the Judicial Committee lays down the principles which should guide an Appellate Court in admitting or refusing to admit fresh evidence in appeal. Their Lordships point that such evidence can be admitted under Clause (1)(b) of Rule 27 only when the Appellate Court requires it or finds it needful. It is also pointed out that the legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent. They add that the power so conferred ought to be very sparingly exercised and that one essential requirement is that the new evidence should have a direct and important bearing on a main issue in the case; and they observe that whenever the Appellate Court adopts the procedure laid down under Rule 27 it is bound to record its reasons for so doing and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified.
4. It is, I think, well established that additional evidence can only be admitted in appeal when the Appellate Court itself finds a necessity for the admission of such evidence in order to pronounce a satisfactory judgment and that the power embodied in Order 41, Rule 27 is not a power to give to one party an opportunity to fill up the gaps of a badly prepared case. Prima facie when an essential piece of evidence, obviously necessary for the proof of a party's case and available to that party, has not been adduced in the trial Court, the Appellate Court will not ordinarily allow the production of the missing evidence in appeal, merely because the trial Court has commented adversely on the failure of the party to prove his case as completely as was obviously necessary. If the Court finds that certain missing evidence is necessary to enable it to pronounce judgment, the Court should record an order to that effect and should specify the points to which the evidence is to be confined. The question whether any omission by the Appellate Court to record its reasons and to provide materials showing that the additional evidence is admitted for proper reasons, will vitiate the judgment, must depend to some extent on the circumstances of the case. It is, I think, established that when both parties agree that further evidence is necessary and admission of that evidence is made by consent, any failure on the part of the Judge to record in due form the reasons for the' admission of that evidence is not a matter which would justify the reversal of the judgment or the rejection of the additional evidence. So much can be inferred from the observations of the Privy Council in Jagarnath Pershad v. Hanuman Pershad (1909) 36 Cal. 833. Mr. Kuttikrishna Menon on the strength of one sentence in the same passage has advanced the contention that when there is no objection to the admission of fresh evidence in appeal, the correctness of the admission of that evidence and the regularity of the proceedings admitting it are not matters which can, in Second Appeal, form a ground for reversing the judgment based on that evidence. The passage in the judgment of the Privy Council on which reliance is placed consists of this:
It is objected secondly that the admission of the account books on appeal was irregular, but there is nothing to show that the admission was objected to at the time.
5. The judgment contains no further discussion of this point and though the introductory matter of the report contains extracts from the judgment of the High Court under appeal, it is not clear what were the account books to which their Lordships refer or what were the circumstances in which those account books came to be admitted. It seems to me impossible to treat this brief observation as authority for a rule that in all cases where there is no recorded objection to the admission of evidence in appeal under Section 41, Rule 27 the provisions of Rule 27 and the procedure laid down under that rule and under Rule 29 can be treated as of no importance. The position on the facts in the present case is that there is no proof either that there was or was not any objection to the admission of this evidence. The probability seems to me from the record in the B diary and the way in which the order on the petition was prepared that the learned District Judge must himself have expressed the opinion in the course of the argument that fresh evidence should be admitted. In such circumstances it may well be that the counsel for the plaintiff may have considered that no opportunity for objection remained. Now it seems to me that the absence of objection can only be regarded as a factor of importance when in the circumstances it appears to have been equivalent to a consent. In the present case though doubtless the plaintiff's counsel may have been aware that the learned District Judge had expressed an intention to admit the evidence of the Kazi, we do not know whether this intention was expressed after an objection had been heard and considered or whether no opportunity for objection was allowed. It cannot, I think, be inferred that there was anything in the nature of an acquiescence in or a consent to the taking of further evidence. With reference to the admission of the two additional documents, there is no indication that this was contemplated at the time when the learned Judge permitted the examination of the Kazi. The probability seems to me to be that these two documents went into the record as incidental to the examination of the witness.
6. Now if the judgment had embodied a statement of the reasons for admitting this additional evidence sufficient to indicate that the learned Judge had applied his mind to the law on the subject and with reference to that law had come to the conclusion that this additional evidence ought to be admitted under the terms of Order 41, Rule 27(1)(b), it might be contended that the failure to make any contemporaneous record of the reasons for admitting the evidence or of the points to which the evidence was to be confined, though irregular, was not a sufficient ground for rejecting that evidence or reversing the judgment based upon it. But I cannot find any such materials in the judgment of the learned District Judge. The reason which he gives for admitting the evidence of the Kazi is that the Kazi is a most material witness and that his evidence fills up the gaps in the case. The fact that the Kazi was a material witness must have struck anyone responsible for the preparation of the defendants' case and it would appear that there was no practical difficulty about getting the evidence of the Kazi who lives quite near the Court.
7. I am of opinion that the failure of a party to examine a material witness when that witness is available and the consequent existence of a gap in his case is not ordinarily a sufficient reason for examining that witness in appeal, though there may possibly be circumstances in which such a [procedure would be justified, as, for instance, if the whole case was in such a muddle that the Judge was unable to pronounce a satisfactory judgment without further materials. But it does not seem to me to be right to allow a party to abstain from producing evidence which is obviously necessary, in the hope that if adverse comment is made upon the absence of this evidence, the deficiency can be supplied in appeal. To my mind it is essential to insist that ordinarily a party should prove his case in the trial Court and that it is only in exceptional circumstances for which Rule 27 provides that the Court may, if it finds further evidence necessary, permit that evidence to be adduced in appeal. I am therefore of opinion that the evidence of the Kazi and the two exhibits, namely Exs. 2(a) and 2(b), proved through him were wrongly admitted. As the judgment of the learned District Judge has been largely influenced by that evidence, the appeal must be allowed and remanded for fresh disposal by the learned District Judge on the materials available excluding this additional evidence. Costs throughout will abide by the result. Leave to appeal is refused.