Lancelot Sanderson, C.J.
1. This Rule was granted to show cause why the decree complained of should not be set aside and such order passed as to this Court might seem fit. The decree complained of was a decree made in consequence of the judgment by the learned Subordinate 4 Judge on the 3rd of August 1921.
2. The suit was brought by the plaintiff to recover money alleged to have been lent by the plaintiff to the defendant.
3. The Court of first instance dismissed the suit. The plaintiff then appealed to the learned Subordinate Judge and arguments were presented to the learned Subordinate Judge on the nth and 12th of August 1921. The judgment, as I have already said, was delivered on the 31st of August. By that judgment the learned Subordinate Judge overruled the decision of the Court of first in stance, allowed the appeal, and decreed the suit for Rs. 72 0 plus Rs. 20 as damages. In the judgment the learned Judge discussed the evidence which was given on the one side and the other, and came to the conclusion that the plaintiff had made out his case,
3. The petition upon which this Rule, was granted alleged that on the 20th of August (hi learned Judge called on the Pleaders for the opposite part}, (that is the plaintiff), to produce the plaintiff before him in order to see whether he was in a position to assert his claim on a Qoran, It was further alleged that the plaintiff appeared before him with a Qoran in hand and stated before the learned Judge that the money was reality due from the defendant to the plaintiff. The bam d judge has given a statement of what in fact took place. The learned Judge said that the statement in paragraph 9 was not correct. He said what happened was as follows: 'I asked the Pleaders on both sides to produce 1heir clients on a certain day, if possible, so as to enable me to confront one with the other and to just questions to them upon the facts material to the case; on the day appointed or some other date the appellant (i.e., the plaintiff) came to Court, but not the other party and I asked the appellant (i.e., the plaintiff) if he could state by the Qoran if his case was true. He said he could do so. He had no Qoran with him at the time-as far as I could make out.'
4. It seems to me that this was an irregularity on the part 0f the learned Judge. There could only be one object in asking such a question, and that was for the purpose of the learned Judge satisfying himself as to the truth of the plaintiff's story; and the learned Vakil who appeared for the plaintiff in this Court has agreed that that must Lave been the object of the learned Judge in asking the quest on.
5. The matter may be looked at from two points of view. If the answer to the question which was put by the learned Subordinate Judge is to be taken as additional evidence, then it seems to the that the learned Judge has not complied with Use provisions of Order XLI, Rule 27, Clause (2). Civil Procedure Code, which provides that 'wherever additional evidence is allowed to be produced by an Appellate Court, the Court snail record 1he reason for its admission.' In this case on the record there is no note or reference to the fact that the plaintiff was called before the learned Judge and that this question was put to him. There is no reference to it in his judgment; and, therefore, the learned Judge has in no way recorded three son for admission of his additional evidence if it be regarded as additional evidence; and, consequently from that point of view there would he an irregularity in the proceedings.
6. If it is looked at from another point of view, namely, that it is not to be regarded as additional evidence, having regard to the fact that the plaintiff was not actually called upon to take his oath upon the Qoran or to take any kind of oath, before the learned Subordinate Judge, but merely said that he was prepared to state upon the Qoran that his case was true, then the position seen s to be worse from the plaintiff's point of view, because it is impossible for us to say that that answer, which was given by the plain the, could have had no effect upon the mind of the learned Judge. To my mind probably it had considerable effect upon the learned Judge's mind, he himself having asked the plaintiff to be produced before him and he himself having asked this question and consequently it seems to me that whether if it is looked at from the one point of view or the other point of view, there was an irregularity in the conduct of these proceedings, which was of such a nature that it would not be right to allow the decision of the lower Appellate Court to stand.
7. Consequently in my judgment this Rule ought to be made absolute, the decree of the lower Appellate Court ought to be made aside and the matter ought to be reminded to the learned District Judge in officer that the appeal may be heard by him or by such other learned Subordinate Judge as he may select.
8. We assess the hearing fee of this Rule at one gold mohur and direct that the costs of this Rule do depend upon the issue of the appeal upon the order of remand.
9. I agree.