Gorakh Prasad Srivastava vs Jhari Shanker Sardar

James, J.—The plaintiff instituted a suit for recovery of the balance due to him on account of bricks and tiles supplied to the defendant. He filed with his plaint an, account book, Oft May 21, 1931, he alleged before the Munsif of Kishungung that a page had been taken fro his account book and a forged page substituted for it. According to the plaintiff the missing page contained the account as made tip between the parties on July 26, 1929, attested by the defendant''s signature. An enquiry was held by the Munsif who reported that the plaintiff''s allegation was untrue. The suit was then tried by another Munsif. It was found that the plaintiff had failed to prove that the account had been made up as he stated in July, 1929 and that he had failed to prove that he delivered to the defendant the number of bricks and tiles which was stated in the plaint. The suit was therefore dismissed. The District Judge on appeal discussed in detail the plaintiff''s claim to have supplied bricks to the defendant. According to the plaintiff the total number supplied was 6,52,100 bricks and 10,300 tiles. The defendant required the bricks, for the erection of a building for the District Board at Bahadurgunj. He thus accounted for only 5,04,000 bricks. The plaintiff says that the defendant had used some of his bricks for the construction of the quarters of the Sub-Registrar and that he had sold some bricks locally.

The defendant, denied that he had ever taken the contract for the construction of the Sub-Registrar''s quarters and it appears that the contractors were Messrs. Arthur Butler and Co. Further confusion was introduced by a suggestion that the defendant was a sub-contractor under Messrs. Arthur Butler & Co. The bricks made by the defendant before the letters G.P. and the learned District Judge considered that the plaintiff ought to have taken out a commission for the examination, of the bricks used for the construction of that building in order to see whether they bore these initials or other initials. Another disputed item was the supply of 10,300 tiles. The defendant said that the plaintiff had fever supplied any tiles to him; but he said that the plaintiff had made some for Messrs. Arthur Butler and G.P. with which the defendant had nothing to do. The plaintiff said that all the tiles prepared by him for the defendant bore the letters G.P. and that if the tiles used in making the roof of the Sub-Registrar''s quarters were examined and counted, 10,000 tiles bearing those letters would have been found. This argument appealed to the learned District Judge who said that he was prepared to give an opportunity to the plaintiff to prove by further evidence his allegation that 10,000 or more tiles were supplied to the defendant. As I have said the learned District Judge remarked that the plaintiff ought to have taken out a commission for the examination of the bricks used in the construction of the Sub-Registrar''s quarters. It is perhaps needless to remark that additional evidence obtained in his way would not be conclusive, because it would not prove that the bricks had been supplied to Messrs. Arthur Butler and Co., by the defendant or that it was the defendant who was taking them from the plaintiff. A similar inconclusive result might possibly have been obtained from the examination of the tiles which might confirm the plaintiff''s case that he had supplied tiles for that particular roof; but it would not necessarily show that he had supplied them to the defendant. The learned District Judge thinking that the plaintiff had erred in failing to apply for a commission before the Munsif was prepared to remand the case in order to enable him to, repair this error; but since it was clear that the mere appointment of a commissioner would not produce any conclusive result, the learned Judge directed that the plaintiff should be given an opportunity to adduce such further evidence in the case as he might consider necessary. It is to be remarked that the learned District Judge did not find that any irregularity in the trial had been committed by the Munsif, but he found that if the plaintiff had conducted his case with greater attention, he might possibly have produced evidence which would have told him in his favour. The learned District Judge then set aside the decree of the Munsif and remanded the case for retrial directing that the parties should be at liberty to adduce such further evidence as they might consider necessary. The plaintiff prays for revision of that order.

Mr. Manohar Lal argues in the first place that the learned District Judge was not entitled thus to enable the plaintiff to produce additional evidence. He relies principally, upon the decision of the Judicial Committee in AIR 1931 143 (Privy Council) , wherein it was pointed out by Sir George Lowndes that the provisions of Section 107 of the CPC are not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his; case and fill up omissions in the Court of appeal. In that case the question of whether a thumb impression was genuine or not was regarded as important and the respondent applied in the Appellate Court to be allowed to give evidence of its genuineness. This was permitted; but the Privy Council held that the additional evidence ought not to have been admitted because if the respondent had desired to give evidence as to the thumb impression, they had ample opportunity to do so in the trial Court. It was pointed out that it is only where the Appellate Court finds evidence actually needful that additional evidence can be admitted. As Sir George Lowndes says:

It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it.

And he goes on to say:

It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply, the defect; but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. Wherever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing, and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

From these observations it is clear that the mere fact that the plaintiff might have been better advised to apply for a commission at the trial of the suit would not in itself warrant the issuing of a commission by the Appellate Court, far less could it be held to justify the Appellate Court in issuing a general order for the admission of such additional evidence as either of the parties might wish to produce.

This point is of some importance as affecting the question of jurisdiction. The learned Advocate for the opposite party argues that the Appellate Court has inherent jurisdiction to remand a case for re-trial where the circumstances of the case appear to the Court to render it necessary. In Balla Mallayya Vs. Peddi Veerayya and Others, , it was held by a Division Bench of the Madras High Court that the Appellate Court has an inherent power to make an order of the kind where it deems such an order necessary for the ends of justice, so that if the Court has jurisdiction it is not open to the High Court to go into the merits in revision and decide whether or not it was properly exercised. As Mr. Manohar Lal points out, the decision, in that case was based on the decision of the Full Bench of the Calcutta High Court in Abdul Karim Abu Ahmad Khan Ghuznavi v. Allahabad Bank Ltd. 41 Ind. Cas. 598 : 44 C. 929 : 21 C.W.N. 877 : 26 Cr.L.J. 49. It was there, held that an Appellate Court has inherent power to remand a case for re-trial where circumstances require it but it was pointed out by Mr. Justice Mukherji that this jurisdiction arises only in exceptional cases in which defects of trial are so radical as to be incurable otherwise than by a re-trial de novo. Mr. Justice Tennon pointed out that the power to remand was in general limited to the provisions of Section 107 of the Code but he observed that Section 107 contemplates and proceeds on the assumption that there has been in the first Court a fair and honestly conducted trial. He observed that other exceptional cases may be conceived. It may be found that the trial Judge was disqualified by personal interest, or that owing to the attitude assumed by the Judge, either party has been precluded from putting forward his case; adding, that in such cases and in other cases, where for instance a minor has been improperly treated as a major, where it may be said that in effect there has been no trial, it is necessarily open to the Appellate Court in the exercise of the inherent jurisdiction to direct a remand or a retrial. It is to be remarked that in Balla Mallayya Vs. Peddi Veerayya and Others, , the Judges found actually that there had not been a proper trial in the Munsif�s Court; and Mr. Manohar Lal argues that the jurisdiction to remand u/s 115 of the CPC comes into existence only when there has not been a proper trial in the Court of the Munsif and that it does not come into existence merely because the Appellate Court may have wrongly considered that a remand is necessary for the ends of justice. The decision of the Full Bench of the Calcutta High Court in Abdul Karim Abu Ahmed Khan Ghuznavi v. Allahabad Bank Ltd. 41 Ind. Cas. 598 : 21 C.W.N. 877 : 26 Cr.L.J. 49 was followed in this Court in Raghunandan Singh v. Jadunandan Singh 43 Ind. Cas. 959 : 3 P.L.J. 253 : 4 P.L.W. 450. In that case there had been a remand by the lower Appellate Court; but the circumstances do not appear from the report. The Judges observed that the power of remand should be exercised with the very greatest caution; and if it had been shown that there was reason to believe that the Court had remanded the case for retrial to avoid deciding a complicated point, they would have felt bound to interfere u/s 115 of the Code. The principle which appears to follow from these decisions is that the inherent power u/s 115 may be exercised when the trial Court has not tried the case properly. When this is found by the Appellate Court, that Court has jurisdiction to remand the case but in the absence of such a finding, it cannot be held that the assumption of jurisdiction is justified or that the Court has any jurisdiction by virtue of Section 115 to order a remand that is to say, the jurisdiction to order a remand u/s 115 only comes into existence when the special circumstances create it. It certainly cannot be said that the Appellate Court is entitled to set aside a decision and order a remand merely because the plaintiff might have been better advised to have applied for a commission, or to adduce more evidence; that is to say, where the Appellate Court ought not to give facilities to the parties for adducing further evidence, the fact that the Court desires to do so cannot give, it jurisdiction to set aside the decree of the Court below and remand the case for retrial.

In the circumstances I hold that the assumption of this jurisdiction was illegal and that this application must be allowed and the order of the District Judge must be set aside. The decree of the Munsif is restored, and the appeal is transferred to the District Judge of Bhagalpur for decision on the merits. The petitioner is entitled to his costs: Hearing fee one gold mohur.