1. This is an appeal by the defendants against a decision of the District Judge of Jessore, dated 5th March 1917, affirming a decision of the Munsif of the same place of the 8th June 1915. The plaintiff's suit was for declaration of his title as an occupancy tenant to certain land and for possession thereof. The defendants, on the other hand, contended that they and not the plaintiff were the tenants of the land. When the case came on for trial before the Munsif, apparently both sides adduced conflicting evidence and the Munsif was not able on the conflict of evidence to arrive at any decision, but he relied upon two facts and first of all upon a mortgage bond, Exhibit 3, of the adjoining land executed in the year 1315 by the plaintiff in favour of the father-in-law of the 2nd defendant. In this document apparently the land in suit is described as being the land of Nibaran Mandal, who is a brother and predecessor in-interest of one Sitanath Mandal, and the Munsif found from this fact that the defendants' story was untrue, as he said that if it had been the fact that they were tenants of the land, then it would have been so stated in describing the boundaries of the mortgage premises comprised in Exhibit 3 and the Munsif secondly stated that the defendants had filed at a late stage certain Dakhilas which he could not take into account. The learned District Judge, as I have already stated, affirmed the decision of the Munsif, saying that in view of the conflict of evidence he could not decide one way or the other upon the oral evidence and he agreed with the Munsif in the inference which he had drawn from Exhibit 3 and from the non-production of the Dakhilas.
2. First of all it is urged that Exhibit 3 was not admissible in evidence as it was a document between the plaintiff and somebody other than the defendants. That, of course, is to be borne in mind in taking into account the evidentiary value of this document along with other evidence. I am not prepared to say that it is not evidence in the case, but at the same time it is not at all conclusive because it might have been that the tenants' names were not entered in describing the boundaries and that only the landlords' names were entered. So far as the second question is concerned, namely, the rejection of the Dakhilas, I think, the Munsif and the learned District Judge have both erred in refusing to consider this evidence. It appears that the suit was commenced on the 5th November 1914 and that some day in December 1914 the suit was adjourned for hearing to 7th January 1915 and that it was not heard on that date. Both sides mutually agreed to a postponement and the Munsif on that day made an order directing both parties to produce their documents within 10 days from that date. The defendants did not comply with that order, but on the 3rd May 1915 they produced the Dakhilas which have been rejected by both the Courts below. The case was actually heard on 1st June 1915. It is stated on behalf of the respondents that both the Courts below were right in refusing to consider the Dakhilas having regard to the provisions of Order XIII, Rules 1 and 2 of the Code of Civil Procedure. I do not think that that is so. Order XIII, Rule 1, provides that the parties shall produce at the first hearing of the suit the documentary evidence in their possession or power on which they intend to rely, and Rule 2 provides that the documentary evidence which is not produced in accordance with Rule 1 shall not be received unless satisfactory evidence for this non-production is adduced, and the Court must record its reasons for allowing the documentary evidence produced at this stage to be used. It seems to me that the first hearing of the suit was not on the 7th January 1915 when the case was not gone into at all, but on the 1st June 1915 when for the first time the case was called on for hearing and was really gone into. Under the circumstances I do not think that the Munsif or the lower Appellate Court was justified in refusing to admit the Dakhilas which had been filed on the 3rd May 1915. They were entitled in considering these documents to take into account the fact that they had not been produced within the time fixed by the order of the 7th January. But they were not entitled to refuse them altogether. It might be that if they had been considered, the defendants would have succeeded in rebutting the effect produced, on the minds of both the Courts below by the recital in Exhibit 3 to which I have already referred. I do not say that these documents, if they were considered, would or would not have that effect. Under the circumstances it seems to me that I must, although the appeal is valued at Rs. 16 only, remit the case to the Munsif in order that he may admit and consider the Dakhilas which were filed by the defendants on the 3rd May 1915 and having considered these documents, he will arrive at a conclusion upon the evidence which has already been filed in the case along with these Dakhilas.
3. Costs of this hearing and of that in the lower Appellate Court will abide the result of the hearing before the Munsif.
4. The learned Vakil for the appellants points out to me that he order passed in December adjourning the case for trial to 7th January 1915 was an order made by affixing a rubber stamp. It is clear from the form of the order with regard to the direction for the filing of written statements that the words 'For trial' should have been penned through in making the order, and that the suit was not down for hearing on that day.