1. The plaintiffs-appellants filed a suit in the Court of the District Judge, Mahasu, against the respondent for the recovery of a sum of Rs. 14,600/-. Therein, the defendant was shown as a resident of village Kyartoo, Tehsil Theog, District Mahasu. The suit was resisted, 'inter alia', on the ground that the defendant was & resident of village Ambota in district Hoshiarpur, Punjab, and he did not reside or carry on business within the jurisdiction of the District Judge, Mahasu. A preliminary issue on this point was framed and parties led evidence upon it. The learned District Judge (Mr. Chet Ram) upheld the defendant's contention and directed that the plaint be returned for presentation to the proper Court. Hence, this appeal by the plaintiffs.
2. Under Section 20, Civil P. C., every suit shall be instituted in a Court, within the local limits of whose jurisdiction, the defendant actually and voluntarily resides, or carries on business, or personally works for gain. In support of the contention that the defendant resided at Kyartoo within the jurisdiction of the District Judge, Mahasu, Sant Ram, plaintiff No. 1, examined himself and produced two witnesses and some documentary evidence. In addition, there is a petition under Order 41, Rule 27, Civil P. C., whereby the appellants want to' produce a copy of the affidavit, filed by the respondent in the Punjab High Court, on 2-7-1953. I shall deal with this later on.
3. Before the District Judge, Sant Ram, plaintiff, stated that Paras Ram, defendant, and his son, Satya Pal, resided in Kyartoo. He also filed certified copies of the address filed by Paras Ram in suit 121 of 1950 pertaining to the Court of the Senior Subordinate Judge, Simla, and of the plaint and the decree-sheet in that case (Exs. PB, PC and PD). In all these three documents, Paras Ram, defendant (who was the plaintiff before the Senior Subordinate Judge, Simla) gave his address as village Kyartoo, Tehsil Theog.
The learned District Judge has brushed aside all this evidence on the ground that the solitary testimony of the plaintiff was not sufficient and the documentary evidence, produced by the plaintiff, pertained to a period prior to the filing of this suit: It is true that we are concerned with the residence of the defendant at the time this suit was filed, but these documents gave a lie to the statement of Paras Ram, defendant, to the effect that his permanent residence was at Ambota and he had no permanent residence at Kyartoo. In cross-examination, while admitting that he had filed an appeal in the Punjab High Court and his residence in that appeal was shown as Kyartoo, he pleaded ignorance as to how his address had been shown as of Kyartoo. Two witnesses for the plaintiffs Kanshi Ram and Lachmi Singh, stated, on oath, that Paras Ram resided at Kyartoo. These two witnesses have been disbelieved by the Court below on the ground that they did not state that Paras Ram carried on trade or business at Kyartoo. This, however, was not an indispensable condition under Section 20, Civil P. C.
4. That brings me to the application under Order 41, Rule 27, Civil P. C., in which I am requested to admit copy of an affidavit, dated 2-7-1953, filed by Paras Ram in the Punjab High Court in Civil Revision 228 of 1953. The application is supportedby an affidavit to the effect that it was only after the defendant's statement had been recorded by the District Judge of Mahasu, that they came to know that Paras Ram had filed this affidavit in the Punjab High Court. There is no counter affidavit. Learned counsel for the respondent cited, 'inter alia',-- 'Arjan Singh v. Kartar Singh', AIR 1951 SC 193 (A), where it was held:
'The discretion to receive and admit- additional evidence in appeal is not an arbitrary one but is a judicial one, circumscribed by the limitations specified in Order 41, Rule 27, Civil P. C., and if additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record, will have to be ignored and the case decided as if it was non-existent.'
Reliance was also placed on an earlier decision of this Court, reported in--'Jit Ram v. Chandhani', AIR 1953 Bilaspur 17 (B), where my learned predecessor observed that:
'Additional evidence admitted not for any of the reasons stated, under rule but only to fill up gaps in the evidence of a party must be discarded.' .
These rulings are, however,-'not applicable to the facts of the present case. The defendant had stated, on oath, on 27-8-1953 before the District Judge that his permanent residence was at Ambota and he had no residence at Kyartoo in Theog Tehsil. In cross-examination, he had further expressed his ignorance as to how his address was shown as Kyartoo in the appeal then pending in the Punjab High Court. The affidavit filed on behalf of Sant Ram, appellant, is that it was only subsequent to the defendant's statement, before the District Judge that he came to know of the affidavit filed by Paras Ram on 2-7-1953 in the Punjab High Court. This, in my opinion, would be of material help in deciding this appeal. As was held in--'Sant Bux Singh v. Ali Raza Khan'. AIR 1946 Oudh 129 (C):
'No party to an appeal can, as of right, ask for admission of additional evidence. It is a matter to be determined by the appellate Court,' whether additional evidence should, or should not, in the circumstances of any particular case, be allowed to be produced. One of the factors which the Court should in such cases take into consideration is the bearing which the evidence sought to be adduced, is likely to have on the matters in controversy in the appeal. If the evidence sought to be adduced has only a slight or remote bearing on the questions in controversy, it should not be admitted. It is only in cases where it turns the scale in favour of one party, or is likely to materially affect the decision of any point arising in the appeal, that such evidence should be permitted to be adduced.'
In the present case, it seems to me that the affidavit now sought to be admitted would materially affect the decision of the appeal. I, therefore, allow this affidavit to be brought on the record.
5. A perusal of this affidavit, which is 'dated 2-7-1953, shows that Paras Ram had stated, on oath, that he lived in village Kyartoo in TehsilTheog and not in Hoshiarpur. About six weeks later to the District Judge of Mahasu, the same Paras Ram stated, on oath, that he had no residence in Kyartoo and his residence was at Ambota. Both the versions could not, obviously, be true. It seems to me that Paras Ram had been playing a game of hide and seek. As far as Punjab Courts were concerned, he maintained that he was a resident of Kyartoo in Himachal Pradesh, As far as Himachal Courts were concerned, he contended that he was a resident of Ambota in the district of Hoshiarpur. Obviously, therefore, no reliance can be placed on his testimony. In my view, the testimony of the plaintiff, Sant Ram, and his witnesses to the effect that Paras Ram resides at Kyartoo must be accepted. I would, therefore, hold that the District Judge of Mahasu (in whose jurisdiction Kyartoo is situated was competent to try the suit. .,
6. The result is: I allow the appeal, set asidethe order of the District Judge (Mr. Chet Ram),Mahasu, dated 29-8-1953 and direct that the suitbe proceeded with in that Court and be disposedof in accordance with law. The appellants willget the costs of the appeal from the respondent.