P.N. Mookerjee, J.
1. This is the defendants' appeal arising out of a suit under Section 77, Registration Act. The disputed document is a kobala, bearing date 1-3-1945. The defendants denied execution of this kobala. On their refusal to register it, it was presented for registration by the plaintiff on 13-3-1945. Registration was refused by the authorities under the Registration Act and, thereafter, en 3-1-1946, the present suit was brought by the plaintiff under Section 77 of that Act.
The trial Court came to the conclusion that the execution of the disputed document by the defendants had not been satisfactorily proved and, in that view of the matter, he dismissed the plaintiffs suit. On appeal, that decision has been reversed by the learned Subordinate Judge whose judgment is based mainly upon the additional evidence of a lawyer witness Babu Kishorilal Das, who was examined by the court and whose evidence was admitted at the appellate stage. The defendants have now come up to this Court in Second Appeal.
2. The only point which has been urged by Mr. Guha in support of this appeal is that the reception of the additional evidence by the learned Subordinate Judge at the appellate stage was improper and not justified by the terms of the relevant provision of the Code, namely, Order 41, Rule 27 (1) (b). In my opinion, Mr, Guha's submission iss not without force in the circumstances of the present case.
3. The additional evidence in question was received and admitted by the learned Subordinate Judge in the course of the hearing of the appeal by his order No. 30, dated 18-7-1949, and the reasons, given by him for admission of that evidence, appear in that order in the following terms:
'It appears to me that the evidence of Sri Kishorilal Das, pleader, is necessary for the ends of justice as it transpires from the evidence of the scribe (P. W. 5) that Kishori Babu prepared the draft of the kobala in question. I thus order examination of Sri Kishorilal Das, to be examined as a witness before me under Order 41, Rule 27, Civil P. O.'
4. The defendants objected to the reception ofthis additional evidence but their objection wasoverruled by the learned Subordinate Judge by hisorder No. 31, dated 19-7-1949, with 'inter alia'the following observations:
'The necessity for examining Sri Kisherilal Dasarose from the evidence, adduced in the suit,and further, the learned Pleader for the respondent repeatedly harped on the absence of Kishori Babu from the dock. My order dated 18-7-1949 thus stands.'
5. In the final judgment delivered by the learned Subordinate Judge, he made the following observations on this aspect of the matter:
'Babu Kishori Lal Das was not examined in the lower court. But at the time of hearing of the appeal when the learned pleader for the respondent repeatedly referred to the absence of Kishori Babu from the dock, I thought it advisable for the ends of justice to examine Babu Kishori Lal Das, Pleader, before me. The defendants thereafter made opposition to his examination but, none the less, I examined Kishori Babu who was allowed to be cross-examined by both sides.'
6. It seems to me that, in the circumstances of this case, as they appear from the present record, the evidence of Kishori Babu was improperly admitted at the appellate stage and I am not convinced that, in the context of those circumstances, the reasons given by the learned Subordinate Judge for taking that additional evidence were proper or sufficient reasons within the meaning of the relevant Order 41, Rule 27(1) (b), Civil P. C.
The test of requirement of the Court for pronouncing judgment or 'for any other substantial cause' as laid down in that Rule and explained repeatedly in the several decisions of the Judicial Committee in -- 'Kessowji v. G. I. P. Rly. Co.', 34 Ind App 115 (PC) (A); -- 'Parsotim Thakur v. Lal Mohar Thakur ; --'Chaturbhuj Singh v. Gobind Prasad Singh', 50 Cal WN 2 (PC) (C); -- 'Mahomed Akbar Khan v. Mt. Motai and also by the Supreme Court in their latest pronouncement in the case of -- 'Arjan Singh v. Kartar Singh', : 2SCR258 , does not appear to have been borne in mind by the learned Subordinate Judge when admitting this additional evidence. The learned Subordinate Judge apparently thought, on the arguments before him, that Sri Kishori Lal Das was an important witness and he at once decided to examine him for 'ends of justice' and, what appeared no less important to him, to silence the defendants' lawyer's repeated adverse comments on 'the absence of Kishori Babu from the dock.'
I am not satisfied that the learned Judge examined fully or even substantially .the evidence on the record before embarking upon the somewhat perilous course of taking additional evidence at the Appellate stage & it seems almost clear that he did not consider the question of additional evidence from the point of view of the Court's requirement 'to enable it to pronounce judgment or for any other substantial cause', for which requirement no valid occasion can legitimately arise before a full or, at least, substantial and sufficient examination of the evidence, already on record.
The learned Subordinate Judge appears to have, been unduly and prematurely swayed by the elliptical and elusive phrase 'ends of justice' and, to no mean measure also, by the defendantes' lawyer'sadverse comments on the non-examination of Kishori Babu by the plaintiff which bad little relevance under Order 41, Rule 27, of the Code. The learned Judge's approach, therefore, to the question before him cannot be justified in law and, on the present materials, the evidence of Sri Kishori Lal Das must be held to have been improperly admitted.
7. In the above circumstances, it is not possible for me to uphold the judgment of the learned Subordinate Judge, based mainly upon the additional evidence, so improperly admitted, namely, the evidence of the lawyer witness Sri Kishori Lal Das, taken at the Appellate stage, and that judgment must, therefore, be set aside.
8. Mr. Lala, appearing for the respondent, relied strongly upon the other Supreme Court decision on this question of additional evidence, namely, the case of -- 'Kamala Ranjan v. Baijnath', : 1SCR840 , But, in my view, the present case falls clearly within the later pronouncement of the Supreme Court in -- : 2SCR258 and its earlier decision cited by Mr. Lala, is distinguishable.
9. In the decision, cited by Mr. Lala : 1SCR840 , their Lordships of the Supreme Court while dealing with the question of additional evidence and holding that 'the matter' before them was 'fully covered by Order 41, Rule 27, Civil P. C.' observed at p. 4 of the Report as follows:
'The judgment of the Appeal Court clearly indicates that it was the appeal Court that 'required' the evidence 'in order to clear up the matter and' 'for the purpose of enabling it to come to a proper decision on this point'.'
10. Reading the above passage in the light of the earlier observations, made by their Lordships in the course of statement of facts at page 2 of the Report, and the judgment of this Court --('Kamala Ranjan v. Baijnath', 53 Cal WN 329 (G) ) which was under appeal before them, it seems proper to hold that their Lordships of the Supreme Court were satisfied that the 'Appeal Court' was unable to come to a conclusion on the evidence, already on record, -- which obviously implied that it had already sufficiently examined that evidence when it decided to give the plaintiff 'an opportunity to examine the Manaraja as a witness' in the case, 'so that all relevant facts might be brought out and placed before the Court for the purpose of enabling it to come to a proper decision' on the point, and admit the said additional evidence.
The stage was thus properly set for reception of additional evidence and the theory of the Court's requirement as envisaged in Order 41, Rule 27 (1) (b) of the Code had obvious application. That this was the correct position receives confirmation from the discussion in the appeal Court's judgment 53 Cal WN 329 at pp. 334-5 (G) of the Report. I do not, therefore, read this decision of the Supreme Court as laying down anything contrary to the other decisions, cited above, or as being of much assistance to. Mr. Lala's client in the present case. On the 'findings, already made by me, the instant case, now before me, isclearly different and : 1SCR840 cannot aid the Respondent.
11. I am not unmindful that, in : 2SCR258 and the Privy Council cases, cited above, the question arose on the application by a party to tender additional evidence but, in my view, that fact does not, in any way, affect or detract from the authority of those decisions -- or the generality and comprehensive character of their Lordships' pronouncement and their very elaborate observations on the subject, -- in matters of additional evidence under Order 41, Rule 27 (1) (b), of the Code. Whether and how far those decisions will apply -- and , so far as it seeks to explain away -- 'Indrajit Pratab Sahi v. Amar Singh', AIR 1923 PC 128 (H), may have to be particularly and carefully considered on this aspect of the matter -- where additional evidence is sought to be introduced on the ground that the particular party had no opportunity to adduce such evidence earlier or how those decisions are to be interpreted in relation to such cases is not a question which arises for consideration on the present occasion, as there is no allegation here, up till now, that the plaintiff-respondent suffered from any such lack of opportunity.
That being so, the 'requirement' of the Court under Order 41, Rule 27 (1) (b) of the Code must have to be judged on the 'evidence on record' before reception of the impugned 'additional evidence' and must be found to arise upon and only after the court's appreciation of that 'evidence on record'. That presupposes examination of that evidence, which test was not followed in the present case. I am, accordingly, unable to accept the submission of Mr. Lala that the evidence of the lawyer witness Sri Kishori Lal Das was properly admitted at the appellate stage.
12. It thus follows that there has been no proper hearing before the Lower Appellate Court and its present decision cannot stand. It seems to me further that, in the circumstances of this case, it is only proper that the matter should go back to that court for a fresh hearing of the plaintiff's appeal before it in accordance with law. I direct accordingly.
13. I must make it clear, however, that, if the appellate court, on examining the evidence, already on the record, excluding of course, the evidence of Sri Kishori Lal Das (which, as I have already held, was improperly admitted and which, therefore, is no legal evidence and must altogether be left out of consideration requires further evidence to be adduced in the light of the decisions, to which reference has been made above, including the decision in : 1SCR840 , as explained in this judgment, it will be open to it to take such additional evidence at the appellate stage in accordance with law and nothing herein will in any way fetter its power in that respect.
14. I must point out also that, if the appellate court chooses to admit additional evidence, it will bear in mind the observations of the Judicial Committee in that connection at page 82 of 41 Ind App 76 (PC), -- 'Jagranl Koer v. Kuar Durga Prasad (I)', and, to the extent those observations will be found relevant in the present case, it willgive them due weight and consideration and mould its action accordingly.
15. The appellate court will first consider properly the legal evidence, already on record, and then the question of its requirement, if any, under 'Order 41, Rule 27 (1) (b) of the Code will arise. I am particularly emphasising this, lest there be repetition of the unfortunate error which was committed by the Lower Appellate Court on the present occasion and which has necessitated this remand.
16. In the above view of the matter, I allow this appeal, set aside the judgment and the decree of the learned Subordinate Judge and send the case back to the lower appellate court to be dealt with in accordant with law in the light of the observations I have made above.
17. Costs of this appeal will abide the finalresult.