1. The question which the District Judge in this case was called upon to decide by the remand order of this Court was, whether the tenure, to which the lands in dispute in this case appertain, is transferable or not.
2. The District Judge says: 'I have gone over the evidence as it now stands and find that it is wholly insufficient to establish transferability, but I allow additional evidence to be given on the point, so that the order of remand may be carried out in the way most favourable to the appellant before the High Court.' Then he caused additional evidence to be taken under the provisions of Section 568 of the Code of Civil Procedure by the Second Munsiff of Arrah.
3. When this evidence was returned, the District Judge, after taking it into consideration along with the evidence already on the record, has come to the conclusion that the tenure is transferable. He has accordingly, in accordance with the directions in the remand order, decreed the plaintiff's suit dismissing the appeal before him.
4. If the evidence thus taken was properly before the District Judge, there is no ground for interference, but it has been contended before us that that evidence was not properly before the District Judge, because it was not taken in accordance with the provisions of Section 568 of the Code of Civil Procedure. Section 568 says: 'The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court.
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Whenever additional evidence is admitted by an Appellate Court, the Court shall record on its proceedings the reason for such admission.' The corresponding section of the Code of 1859 was Section 355. The provisions of that section and Section 568 are substantially the same. In the decision of the Judicial Committee in Gunga Gobind Mundul v. Collector of the 24-Pergunnahs 11 Moo. I.A. 345 (368) it was laid down that the recording of reasons by the Appellate Court for receiving additional evidence is not a condition precedent to the reception of that evidence.
In Beharee Lall Nundee v. Troyluckho Moyee Burmonee 12 W.R. 223 Mr. Justice Markaby makes the following observations with reference to the decision of the Judicial Committee just referred to. 'The Privy Council have held, as seems to me they must hold, that this section does not make the act of the Judge in recording the reasons for receiving the evidence a condition precedent to the reception of the evidence (Sutherland's Privy Council Judgment, page 68); but this Court has nevertheless held in some cases Juggobundhoo Deb v. Goluck Chunder Holdar 10 W.R. 228; Joog Maya Debia v. Ram Chunder Chatterjee 10 W.R. 378 in special appeal, that the evidence has been improperly received, and has on that account set aside the decision. I imagine that these cases rest upon the ground that it was considered that there the Judge below had never considered the matters at all with reference to the provisions of Section 355, and had never decided upon that section that the evidence ought to have been received. One of them is so explained by Mr. Justioe Hobhouse in Special Appeal No. 666 of 1869. I do not at all question the authority of these decisions, but I am not prepared to go to the length of saying that in this case the Judge has not considered the matter in accordance with the law. He says he considers that it is proper to ascertain the point of fraud, or no fraud, with reference to the documents then produced for the first time. If it were necessary to record the reason for the reception of the new evidence legally admissible, the Judge has not done so. But as it is conclusively stated that this is not necessary, then, I think, we have nothing before us which will justify us in saying that the Judge has acted erroneously. This seems to me to be in accordance with the view taken by Bayley and Hobhouse, JJ., in the Special Appeal No. 668 of 1869 in which decision I concur.
5. The result of these decisions seems to me to be this, that where the Appellate Court, though it is not satisfied that the evidence is necessary either under Clause (a) or Clause (b) of Section 568, still allows additional evidence to be taken, the second Appellate Court will interfere; but where this does not appear to be the case, and there is simply an omission on the part of the Appellate Court to record its reasons for allowing additional evidence to be taken the second Appellate Court will not interfere.
6. Now, in this case, we cannot say upon the judgment that the District Judge was of opinion that there was no substantial cause for taking additional evidence within the meaning of Clause (b) of Section 568. No doubt, he says that he 'allows additional evidence to be given on the point, so that the order of remand may be carried out in the way most favourable to the appellant before the High Court.' This observation no doubt is entirely based upon a misapprehension of the purport of the remand judgment. The remand judgment simply directed him to decide a particular issue which it was essentially necssary to decide in order to dispose of the case before him satisfactorily. It did not at all authorize, or direct, or in any way countenance, the taking of additional evidence. Upon that point he was left entirely to act according to the law. But although in this respect he has fallen into error, still we cannot say that before taking additional evidence he was not satisfied there was a substantial case of the nature mentioned in Clause (6) of Section 568. We dismiss this appeal with costs.