Doraisamy Aiyar vs Annasamy Aiyar and Others

An objection is now taken in appeal that the Judge should have taken down the evidence in the manner prescribed by Section 182 of the Code

of Civil Procedure. This, it is admitted, was not done. The Judge has recorded nothing more than notes. We observe, for example, that he gives

the name of the petitioner''s 8 witnesses and states that his evidence is as to certain matters the same as that given by the preceding witnesses but

does not record his deposition. We must hold that this procedure was irregular, Proceedings connected with orders passed in execution from

which an appeal lies must be held to be cases in which an appeal lies within the meaning of Section 182 of the Code of Civil Procedure, and such

being the case evidence should be recorded as there required. It is urged on behalf of the respondents that granting that the procedure of the

District Judge was irregular, it cannot be held that such irregularity affected the merits of the case and that we should therefore not interfere on the

ground of such irregularity (S. 578 of the Code of Civil Procedure). We cannot accept this view. In the affidavit filed by the vakil who appeared in

the Lower Court, it is alleged that many statements made by . witnesses which he considered to be important have not been recorded. Where no

attempt has been made by the Judge to record the evidence in full, it is impossible for us to hold that this allegation is unfounded. We accordingly

must send back the case and direct the Judge to record the evidence tendered before him in the manner required by Section 182 of the Code of

Civil Procedure. We observe that the Judge refused to examine a witness, Sivararnier, on the ground that he had been present in Court instructing

a Vakil while other witnesses were being examined. This fact might well detract from the weight to be attached to this man''s evidence, but was

certainly not a valid reason for refusing altogether to examine him. The Judge should examine this man, record the evidence as now directed, and

submit a revised finding within 3 months from the date of receipt of this order. Seven days will be allowed for filing objections after the finding has

been posted up in this Court.