Kalika Dutt Mandar vs Tulsi Mandar

The plaintiff in this suit sued upon a bond, in which it was set forth that the consideration upon which this bond was given was an existing consideration under a previous bond and account. The Court of first instance refused to accept the oral evidence given in support of this consideration and pointed out that it was impossible to give the plaintiff a decree without reliable accounts,. the previous bond itself and a close inspection of these papers.

Upon appeal from the decree of the first Court dismissing the plaintiff''s suit, the appellant offered to place before the District Judge the original bond whereby the original consideration might have been proved. The learned District Judge refused to accept the bond and dismissed the plaintiff''s appeal. Against that decision an appeal is made to this Court. The short point, therefore, is what document should an Appellate Court accept under Order XLI, Rule 27. Rule 27 (a) has nothing to do with the case before us, and the case comes" under Rule 27 (6): "If the Appellate Court requires any document to be produced...to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence to be produced." 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 this 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. The question remains whether sufficient cause was shown for admitting the document in the lower Appellate Court. From the record of the case as tried before the learned Munsif it is clear that the plaintiff was fully aware of the precise place, namely, the record room at Bhagalpur, in which this document might have been found. He took no steps to search for it and produce it in time for use during the adjudication of his claim, and the learned District Judge exercised, in our view, a very sound discretion in refusing to regard the pure laziness of the plaintiff in the lower Court as sufficient cause for giving him a peculiar license in the Appellate Court.

The appeal is dismissed with costs.