Patna High Court
Jagdeo Lal vs Ram Lagan Singh on 4 August, 1919
Equivalent citations: 53IND. CAS.826, AIR 1919 PATNA 341
JUDGMENT Das, J.
1. This application is directed against an order under Section 476 of the Criminal Procedure Code passed by the learned District Judge of Chapra.
2. It is necessary to state the facts very briefly.
3. It appears that on the 17th of November 1916 Ram Lagan, who is the opposite party in these proceeding?, took a zurpeshgee lease from a lady of the name of Phulesra Kuer for a consideration of Rs. 899. There were two previous mortgages affecting the property in favour of the petitioner, one for Ra. 149-14 and the other for Rs. 70, and the petitioner was in possession of the property by virtue of the two previous mortgages, It was pro-vided in the document executed by Phulesra Kuer in favour of Ram Lagan that Ram Lagan should discharge the two debts due to the petitioner and that he should pay the lady the balance of the money. Ram Lagan tendered these two specific sums of money to the petitioner. The petitioner refused to take them, contending that on the 9th of November 1916, that is to say, before the zurpeshgee deed was executed in favour of Ram Lagan, Phulesra Kuer executed a sale-deed in respect of, the same property in his favour. He, therefore, claimed to be in possession of the property as and from the 9th November 1916 as the owner of the property. His case is that after the execution of the document the lady would not register it and so he had the document compulsorily registered on the 7th March 1917.
4. Ram Lagan thereupon brought the usual suit for redemption against the. petitioner. The question before the learned Munsif, who tried the case in the first instance, was as to which of the documents was earlier in point of time, namely, the document executed in favour of Ram Lagan on the 17th November 1916, or the document alleged to have been executed in favour of the petitioner on the 9th November 1916. The learned Munsjf came to 4he conclusion that the document executed by the lady in favour of the petitioner on the 9th November 1916 was a genuine document and that, therefore his document being prior in time must prevail over the document propounded by the opposite party. He thereuoon dismissed the redemption suit brought by Ram Lagan against the petitioner.
5. From that judgment there was an appeal to the Court of the District Judge of Chapra. There the learned District Judge tock a course which has been described as unprecedented in the case of Kessowji Issur v. Great Indian Peninsula Railway Compuny 31 B. 381; 9 Bom. L. R. 671; 11 0. W. N. 721; 6 C. L. J. 5; 4 A. L. J. 461; 17 M. L. J. 347; 341. A. 115; 2 M. L. T. 486 (P, C.). He thought that it was necessary to have some farther evidence in the case and he thereupon remanded the case to the lower Court, that is to say to the Court of first instance, merely for the purpose of recording the evidence and transmitting the evidence so recorded to the Court of the District Judge.
6. Now it is not suggested that this evidence was tendered in the Court of first instance and was rejected by that Court. That is not the suggestion of Mr. Gour Chandra Pal, who has with my leave appeared to argue the case on behalf of the opposite party. It is not suggested by the learned District Judge that there was an inherent defect or laouna in the evidence as it stood which prevented him from disposing of the case either in favour of the appellant or the respondent. The learned District Judge thought that further evidence was necessary. In my opinion Order XLI, Rule 27, gives him no power at all to remand the case to the Court of first instance for the purpose of recording further evidence. The point was discussed in the case which I have just cited and which is reported as Kessowti Issur v. Great Indian Peninsula Railway Company (1). I may draw the attention of the learned District Judge to the weighty words of Lord Robertson in the case whidh I have just cited. With reference to this very point, Lord Robertson said as follows:
The legitimate occasion for Section 568" which corresponds to the present Order XLT, Rule 27, "is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it. That is the subject of the separate enactment in Section 623.
7. It seems to me that it was not necessary for the Court at all to admit this fresh evidence in order to enable it to pronounce judgment in the case. The record was complete so far as it went; only the additional evidence might enable the learned District Judge to take another view of the case. That does not fall within the scope of Order XLI, Rule 27, at all. The same point has been debated in this Court in more oases than one, and I may draw the attention of the learned District Judge to the case of Kalika Butt Mandar v. Tulsi Mandar 37 Ind. Cas. 1008; 1 P. L. J. 436.. With reference to Order XLI, Rule 27, Mr. Justice Roe said as follows:
This does not mean that in order to enable the Appellate Court to pronounce judgment in favour of a particular party additional evidence should be admitted in appeal; it means only that where it is impossible to pronounce judgment at all on the evidence, the Court may call for a document. In this case the burden of proof was upon the plaintiff and in the absence of proof of the consideration the Court was in a position to pronounce judgment in favour of the defendant. The document was not required to enable the Court to pronounce judgment. The highest at which it can be put is that it might have been required in order to enable the Court to pronounce judgment in favour of the plaintiff, which is an entirely different thing.
8. In this case I have no doubt at all that the fresh evidence which has been recorded by the Munsif by the direction of Mr. Monahan, the learned District Judge, might enable that Court to pronounce judgment in favour of a particular party, but that, as I have already said, is not within the soope of the Section at all. The record as it stood enabled the learned District Judge to pronounce judgment in the case: that being so, the question arises whether the order passed by the learned District Judge sanctioning the prosecution of the petitioner under Section 476 of the Code of Criminal Procedure is a proper order. In my view-only one answer can be given to this question, namely, that it is not a proper order and cannot be sustained. It is clear to me that the learned District Judge formed an opinion on this matter on evidence which he had no jurisdiction to take in the case at all. In my opinion, therefore, the order against the petitioner must be set aside and I order accordingly.