Kali Charan Sahu vs Jaldhari Raut and Another

Wort, J.—It is to be remembered in the first place that this is a second appeal and that we are bound by the decision of the District Judge on questions of fact. There is no suggestion in this case that there was no evidence upon which he could have come to the conclusion at which he has arrived. It was faintly argued that he had not determined the question of fact which came before him. This argument cannot prevail. There were two main issues: (1) whether the hand-note was executed by the defendant and (2) whether the money was actually advanced on the hand-note or not. A subsidiary question connected with the first is whether the defendant was illiterate. The defend ant in para. 9 of his written statement averred that the writing was forged, the defendant being quite illiterate. A great deal of discussion on this point appears to have taken place but the learned District Judge says that he thinks this issue is unimportant, and although he appears to deal first with the issue of whether the money was advanced or not he clearly comes to the decision that the document was not executed. He says (to use his own words referring to the plaintiff''s witnesses):

None of these appears to be independent, and the criticisms which the learned Subordinate Judge has advanced upon their evidence of the passing of consideration applies also to their proof of the execution.

He then goes on to deal with these witnesses. On a clear reading of his judgment I have no hesitation in saying that the learned District Judge has decided the issues of fact in the case. His decision may be a decision at which this Court would not have arrived: in fact, he might be clearly wrong. But this being a second appeal it is not for this Court to set aside his judgment on that ground. Nor have we jurisdiction in this case to say that the evidence is sufficient or insufficient. If we do, we immediately make ourselves Judges of fact which necessitate our examining the evidence in detail and coming to a conclusion thereon; Womes Chunder Chatterjee v. Chundee Churn Roy Chowdhry 7 C. 297. In my opinion this concludes the appeal. But a very long argument was addressed to us on the question whether the learned District Judge was right in refusing to admit fresh evidence at that stage of the case.

The facts connected with this point are shortly these. A kabala (Ex, 3), it would appear, was produced before the trial Court and was referred to on appeal before the learned District Judge. This kabala was produced by the plaintiff to show that the defendant''s allegation that he was illiterate was false as it purported to bear the signature of the defendant. This was not accepted by the Subordinate Judge. The appellant (plaintiff) put in a petition before the District Judge to the effect that after the decision of the Subordinate Judge he came to know of the existence of two other documents. There was also a request that extra oral evidence might be called. The petition stated that these two documents were unknown to the petitioner until after the result of the trial before the Subordinate Judge was known, and then the fellow-villagers informed the plaintiff that these two documents existed. The learned District Judge is his judgment deals with this application in these words:

It is said that other registered documents bearing the signature of the defendant have since been found. I have refused this application because I find that the written statement contains a clear allegation that defendant No. 1 is illiterate. The evidence in the case was taken more than six months after the written statement had been filed. The plaintiff, therefore, had ample time to collect evidence. I see no reason why he should be given a further opportunity now. If such applications are allowed, every unsuccessful plaintiff would want to produce further evidence. I think in such cases the plaintiff must show that even with due diligence he would not have produced the evidence in question at the hearing. This has not been shown in the present case.

Now, the relevant order and rule to be considered in this connection is Order XLI, Rule 27. The argument presented is two-fold: (1) that the Court under Order XLI, Rule 27 is entitled to call for these documents and (2) the decision of the learned District Judge in refusing to admit this evidence was erroneous. Now, first, can we call for these documents? If we can, our power must be under Sub-rule (6) of the rule. But it is quite clear in this case that we do not require these documents to enable us to pronounce the judgment. The facts have been found and if the District Judge has failed to determine the issues in the case the proper course for the Court to pursue would be to remand the case to the learned Judge for him to hear and determine according to law.

I am not forgetful of the latter part of this sub-rule which uses the expression "or for any other substantial cause". Nor am I forgetful of the decision in Indrajit Pratap Bahadur Sahi v. Amar Singh 74 Ind. Cas. 747 : 4 P.L.T. 447 : 21 A.L.J. 554 : AIR 1923 P.C. 128 : 1 Pat. L.R. 345 : 2 Pat. 676 : 33 M.L.T. 233 : 45 M.L.J. 578 : 18 L.W. 798 : 25 Bom. L.R. 1259 : 28 C.W.N. 277 : 39 C.L.J. 318: 50 I.A. 183 (P.C.). The effect of that decision is merely this, that although there be no lacuna in the evidence the Appeal Court may call for fresh evidence if there is any other substantial cause. But it is to be remembered that that case was a first appeal and not a second appeal and the decision that the High Court was wrong in the conclusion at which it arrived in that case cannot apply to the decision of the High Court in a second appeal. The question that we have to ask ourselves is, is any fresh evidence necessary? We have the facts found, we are not judges of fact in this instance, and a mere argument that the learned District Judge might have come to a different conclusion had he received this evidence is immaterial. But we have to decide whether any point of law arises in connection with this refusal to accept the evidence. This much may be said that his decision depended upon his view of the facts. He came to the conclusion on these facts against the plaintiff appellant and unless it be shown that he exercised his discretion in a manner contrary to legal principles we cannot interfere with it. Although the learned District Judge''s statement that the plaintiff must show that even with due diligence he could not produce the evidence finds no place in Order XLI, Rule 27, it is clear that this is an elementary consideration applicable to the case of this kind. If it were not so, an unsuccessful litigant could say:

It is true that although I have not been very diligent about gathering evidence for my case yet I want now to adduce evidence which I could have or might have produced at the trial.

It is equally clear in my judgment that the mere fact that evidence of similar character to that adduced at the trial has come to light since the trial which evidence if it had been, considered, might have affected the weight of the evidence before . the Court, is equally no argument. Further I think this question has been settled by authority in a Full Bench decision Vaithinatha Pillai v. Kuppa Thevar 53 Ind. Cas. 274 : 42 M. 737 : 10 L.W. 122 : 37 M.L.J. 125; (1919) M.W.N. 525 : 26 M.L.T. 246 (F.B.) which follows a long line of cases in the Calcutta High Court in which it has been decided that the High Courts will not interfere with the discretion, of the lower Court in the exercise of discretion to admit fresh evidence.

I would repeat in conclusion that as the exercise of this discretion depended upon a decision of facts we are precluded from interfering with it having regard also to the fact that it cannot be shown that the learned District Judge has exercised his discretion contrary to legal principles.

The appeal, in my judgment, should, therefore, be dismissed with costs.

Jwala Prasad, J.

At one stage I was very much inclined to remand the case for giving an opportunity to the plaintiff to prove the additional documents which he subsequently discovered, namely, at the stage when the case came before lower Appellate Court, but on a further consideration I am of opinion that in this particular case the plaintiff should not be allowed to adduce further evidence. The suit is based on a hand-note which purports to bear the thumb-impression as well as the signature of the defendant. The plaintiff adduced evidence in proof of the signature of the defendant on the hand-note and he also produced the document purporting to bear the signature of the defendant but it turned out at the time of the hearing of the suit that it was not the signature of the defendant but of some other person bearing the same name. The plaintiff then, when the case was in the lower Appellate Court, filed an affidavit stating that he has since then discovered certain other documents bearing the signature of the defendant. Even if he were allowed at this stage to prove those documents, the matter will not be conclusive for no attempt was ever made by him to prove that the thumb-impression on the hand-note is that of the defendant. He did not call for any expert to compare the thumb-impression on the document with the admitted thumb-impression of the defendant. The evidence now sought to be adduced, even if admitted, will not, therefore, be conclusive and the remand will be infructuous. I, therefore, agree with the order just passed by my learned brother.