1. A. A. O. 352/50: -- This is an appeal by the plaintiffs against an order of remand by the learned District Judge of Salem which cannot possibly be supported. In the suit a will executed by one Narasimha Chetty was propounded by the defendants. The learned Subordinate Judge found that it was not genuine. In appeal, it would appear, after the arguments began, an application I. A. No. 124 of 1950 was filed on behalf of the defendants to send the Will to the examiner of questioned documents or any other accredited hand-writing expert and for the admission of such additional evidence. The learned District Judge thought it necessary in the interests of justice to do so and remanded the whole suit for fresh disposal allowing the prayer in I. A. No. 124 of 1950.
2. The procedure adopted by the learned District Judge as it appears to me, is repugnant to Order 41, Rule 27, Civil P. C., which forbids parties to an appeal to produce additional evidence whether oral or documentary in the appellate Court except on certain stringent conditions. Mr. Desikan would seek to bring the application for admission of additional evidence filed on behalf of the defendants under Order 41, Rule 21 (1) (c), Civil P. C. This provision only operates when the appellate Court requires any documents to be produced, or any witness to be examined to enable it to pronounce judgment or for any other substantial cause. 1. A. No. 124 of 1950 was rather strangely not filed under any provision of Order 41 but under the omnibus Section 151, Civil P. C. which can, in my view, under no circumstances, be invoked in a case covered by Order 41, Rule 27, Civil P. C., which by itself confers on an appellate Court ample discretion to have produced before it any evidence it requires to do justice in a case. In any event Order 41, Rule 27, Civil P, C. does not contemplate an appellate Court remanding a suit to the trial Court for fresh disposal with a direction to admit any fresh evidence before it. This provision makes it obligatory on the appellate Court itself to admit additional evidence and take it into consideration although, it may, under Order 41, R. 28, Civil P. C., direct the trial Court, or any other subordinate Court, to record such evidence and send it to the appellate Court to assist it in arriving at a final decision. If the learned District Judge left that the interests of justice required the opinion of a hand-writing expert there was no legal impediment to his obtaining that assistance by way of additional evidence under Order 41, Rule 27 (1) (c), Civil P. C. and utilising it for a final disposal of the appeal. One thing he cannot do, and that is, admit further evidence in appeal and then remand the suit for a fresh disposal to the trial Court on the looting of such evidence to be taken before it, thereby incidentally embarrassing also the trial Court very considerably, which had come to its own conclusion to the best of its ability on the material placed before it.
The learned District Judge appears to have felt very strongly that the interests of justice required the expert evidence of an examiner of questioned documents' or an accredited handwriting expert, without any consideration of the failure of the defendants to apply for this evidence being made available in the trial Court. A remand of this kind has the effect of protracting litigation indefinitely and starting a fresh cycle from the trial Court upwards. Far from being able to agree that the interests of justice require a reference to a hand-writing expert, I am clearly of opinion that the interests of justice require as speedy a decision as possible of this litigation, this suit having been filed in 1946. Justice delayed like this is justice denied. The appeal will be restored to the file of the District Judge with a direction to him to give it as expeditious a disposal as possible on the merits and on the evidence already recorded in the trial Court. Costs of this appeal will abide the result and be provided for in the ultimate decree.
3. C. R. P. No. 1621 of 1950: This revision petition against the order of the District Judge allowing I. A. No. 124 of 1950 is allowed with coats irrespective of the result.