1. We are invited in this Rule to set aside a decision of the District Judge in which he has reversed the decision of the Munsif in a suit for recovery of money due for the price of cloths supplied. The plaintiffs in the Court of first instance claimed to recover the sum of Rs. 159-2 as principal and interest, and along with the plaint they produced their ledger to show that the amount in question was due. Later on, in the course of the trial they produced their day-book to corroborate the entries in the ledger, and it was admitted in evidence apparently on the ground that the case was covered by the second paragraph of Section 59 of the Code of Civil Procedure. The Munsif then considered the whole of the evidence, oral and documentary, on the record and came to the conclusion that the claim was established. The. defendants appealed to the District Judge and on their behalf it was contended that the day-book ought not to have been received in evidence as it had not been produced with the plaint under Section 62, Code of Civil Procedure. The learned District Judge held that the claim was based really on the day-book, that consequently the day-book and not merely the ledger ought to have been produced in Court along with the plaint, and that as the plaintiffs had failed to give any satisfactory explanation for non-compliance with the requirements of the Code in this matter, the Court of first instance ought not to have received the day-book in evidence under Section 63. The District Judge proceeded to observe that if the day-book was ruled out, there was no evidence to support the claim which must consequently fail. In this view he decreed the appeal and dismissed the suit with costs. The plaintiffs have now obtained this Rule, in which the decision of the District Judge is challenged on three grounds, namely, first, that the District Judge has erroneously treated the suit as based on the day-book whereas he ought to have held that the claim was founded really on the ledger produced along with the plaint; secondly, that even if it be assumed that the claim was founded on the day-book, as the day-book had been received in evidence in the Court of first instance, it ought not to have been excluded from consideration unless the learned Judge was satisfied that the reception of the book at a late stage of the case had prejudiced the trial of the case on the merits; and thirdly, that even if the day-book be left out of consideration, the learned District Judge ought to consider the case upon the remaining evidence on the record, namely, the ledger, the purjas, and the oral evidence.
2. As already observed, we are invited to interfere with the decision of the District Judge under Section 115 of the Code of 1908., If that decision had been challenged solely on the first of the three grounds taken on behalf of the petitioners, we would have been obliged to hold that the petitioners were not entitled to seek the interference of this Court in the exercise of its revisional powers. Even if we assume that the District Judge has erroneously held that the suit was based really upon the day-book and not upon the ledger and has consequently erroneously held that the day-book ought to have been produced along with the plaint, we could not say that he had refused to exercise a jurisdiction vested in him by law or had acted in the exercise of his jurisdiction illegally or with material irregularity. The view taken by the learned District Judge would, at most, so far as the first ground is concerned, involve an error of law, and it has been held by their Lordships of the Judicial Committee in Amir Hassan Khan v. Sheo Baksh Singh 11 C. 6 (P.C.) : 11 I.A. 237 that when a Court commits an error of law, it does not act in the exercise of its jurisdiction either illegally or with material irregularity within the meaning of Section 622, Civil Procedure Code. There are, however, two other grounds upon which the judgment of the District Judge is challenged, and, in our opinion, they are grounds which bring the case within the scope of Section 115, Code of Civil Procedure. It is contended on behalf of the petitioners that under Section 578, Code of Civil Procedure of 1882 which was in force when the appeal was heard by the District Judge, he could not reverse the decision of the Court of first instance on account of any error, defect or irregularity whether in the decision or in any order passed in the suit or otherwise, which did not affect the merits of the case or the jurisdiction of the Court. If we assume for a moment that the suit was really based not upon the ledger but upon the daybook, and that, therefore, the latter ought to have been produced along with the plaint, as it was produced at a late stage of the case, it could be received in evidence under Section 63 only with the leave of the Court. That leave was granted. Whether the leave was properly granted or not might, no doubt, be considered by the appellate Court. But that Court could not in view of the provisions of Section 578 reverse the decision of the first Court on the ground that the leave ought not to have been granted for the reception of the document at a late stage of the case unless it was satisfied that the grant of leave at a late stage of the case had affected the merits of the case. In support of this view it is sufficient to refer to the observations of their Lordships of the Judicial Committee in the cases of Goshain Tota Ram v. Rajah Rickmiunee Bullub 13 M.I.A. 77 : 3 B.L.R. 34 (P.C.) : 12 W.R. 32 (P.C.) Ram Chunder Butt v. Chunder Coomar Mundul 13 M.I.A. 181 and to the decisions of the learned Judges of the Madras High Court in Mahadevappa v. Srinivasa Rau 4 M. 417 and Minakshi v. Velu 8 M.373. In the case before us, the District Judge has not stated in his judgment whether the reception of the document at a late stage of the case has prejudiced the trial of the case on the merits : it was not competent, therefore, to him, in view of the provisions of Section 578, to reverse the decision of the Court of first instance on this ground alone. No doubt, the provisions of Section 62 are of an imperative character and ought to be strictly followed. We must remember at the same time the policy which underlies Sections 62 and 63 of the Code. That policy is to exclude evidence, as to the existence of which at the date of the suit there may be reasonable doubt and as to the genuineness of which suspicion might rightly arise, because it was produced at a late stage of the proceedings. [Devidas Jagjivan v. Pirjada Begam 8 B. 377; Talewar Singh v. Bhagwan Dass 8 C.L.J. 147 : 12 C.W.N. 312. The bare circumstance, therefore, that a document had been produced at a late stage of the case and had been received by the Court of first instance under Section 63, would not by itself constitute a sufficient reason for the exclusion of the document from consideration by the appellate Court. When a document has been received by the Court of first instance, the appellate Court ought to consider whether leave for its reception ought or ought not to have been granted, whether the grant of such leave has prejudiced the trial, and lastly, whether by reason of the delay in the production of the document, there was a well-founded ground for suspicion that the document was not genuine and reliable. We are, therefore, unable to support the view taken by the learned District Judge that the document in question should be, as he puts it, ruled out, merely because it was not produced along with the plaint. The error of the District Judge does amount to an illegal and irregular act, and by itself, forms a sufficient ground to justify the interference of this Court. The view we take is not in any way contrary to the decision of the learned Chief Justice in Enat Mondul v. Baloram Dey 3 C.W.N. 581.
3. The third ground taken on behalf of the petitioners, however, renders it absolutely necessary that the decision of the Court of appeal below should be set aside. The learned District Judge observed in his judgment that if the day-book was ruled out, there was no evidence to support the plaintiffs' case which must consequently fail. It is pointed out that if the day-book were ruled out, there would still remain other evidence worthy of consideration and our attention is invited to the ledger and to the oral evidence adduced in proof of the day-book. It is contended by the learned vakil for the opposite party that as the ledger was drawn up from the entries in the day-book, if the day-book is excluded from consideration, not much reliance should be placed upon the ledger. That, however, is entirely a matter for consideration by the Court which deals with the facts. The learned vakil for the opposite party, is unable to contend that in the absence of the day-book the ledger is not admissible in evidence. If the day-book is excluded the learned Judge will still have to consider whether the entries in the ledger are reliable. There can be no question, therefore, that there has been no proper trial of the appeal by the District Judge.
4. The result, therefore, is that this Rule must be made absolute and the order of the Court below discharged. The case will be remitted to the District Judge in order that the appeal may be re-heard; he will consider in the first place whether the day-book ought to be excluded from consideration for any substantial reason: he will next consider whether even if the day-book be excluded from consideration, the remaining evidence on the record is or is not sufficient to establish the claim of the plaintiff.
5. The costs of this Rule will abide the result. We assess the hearing fee at one gold mohur.