Sheogobind Rai vs Deonarayan Ahir and Others

Varma, J.—The plaintiff is the appellant in this case. The suit was filed for a declaration that 1.50 acres of land covered by takhta No. 49 situate in mouza Nawar belonged to the plaintiff, and for recovery of possession of the land together with mesne profits. His case was that defendants 2 to 6 settled 23 bighas 6 kathas of land, including the disputed land, with the plaintiff at a rental of Rs. 17, and they also settled a similar area on a similar rent with defendant 1. The landlords, i.e. defendants 2 to 6, filed a rent suit (117 of 1927) against the plaintiff and defendant 1 jointly for recovery of arrears of rent of both the holdings of the plaintiff and defendant 1 at a rental of Rs. 101 and that suit was dismissed for default. There was another suit by them (375 of 1930) against the plaintiff and defendant 1 for recovery of arrears of rent for the years 1334 to 1337 Fs. at the same rate as was demanded in the previous rent suit. In the latter suit defendant 1 pleaded that his holding consisted of 43 bighas 4 kathas with a rental of Rs. 90 and that the plaintiff''s holding (that is the plaintiff in this suit) was an area of 3 bighas 8 kathaa covered by khata No. 60. That suit was disposed of on a compromise by defendant 1. Under the compromise the landlord plaintiff withdrew the suit against the present plaintiff and the possession of the present plaintiff was interfered with by defendant 1. It led to a proceeding u/s 145, Criminal P.C. which was disposed of and then defendant 1 dispossessed the plaintiff from the area of 2 bighas 8 kathas.

Defendants 1 to 4 alleged that defendant 1 took the settlement of 43 bighas 4 kathas and the plaintiff took settlement of 3 bighas 8 kathas separately and not as alleged by him, that he was in possession of half of 43 bighas odd. The learned. Munsif dismissed the suit and the plaintiff went in appeal before the lower appellate Court. The lower appellate Court has confirmed the decision of the learned Munsif. Hence this second appeal. The only point urged in this appeal is that a certain number of documents which the plaintiff wanted to have brought before the trial Court were not taken into evidence by the trial Court and the lower appellate Court refused to take them in evidence at the appellate stage, or to remand the case to the trial Court for taking those pieces of documentary evidence into consideration and deciding the case after that. A few dates are important. The suit was filed on 30th November 1931. The petition for taking the documents in evidence was filed with certified copies of those documents on 25th August 1932. The order of the learned Munsif was "Call for the papers as prayed for," the prayer being to call for certain papers from the District Judge''s record room at Arrah. This shows that the learned Munsif did not think at that stage that the petition was filed very late. The Munsif who sent for the papers did not continue in seizin of the case because it appears from the order sheet (O.16 of the trial Court) that the case was transferred to another Munsif, who ordered, on 10th December 1932, that the case would be taken up on 4th January 1933. On 4th January 1933 the defendants filed hazari.

The plaintiff filed a petition for time, but that petition was rejected on the ground that he should have taken steps for having the records before the Munsif at an earlier date. When the petition for time was rejected the plaintiff naturally filed hazari and the suit was taken up. After the day''s work was over, on 4th January 1933, it appears that the Munsif agreed to let the plaintiff have a rubakar issued that day at the plaintiff''s own risk. On the 5th January the plaintiff stated that the documents were expected that night and he wanted permission to file them as evidence, but by that time the evidence was already closed. On 6th January 1933 the plaintiff filed another petition stating that the documents had been despatched from the record-room of the District Judge of Arrah and he was expecting them on that day. Arguments were heard on that day but the documents were not taken in evidence. As to what happened on 6th January 1933 clearly appears from the affidavit that has been filed by the plaintiff''s advocate and a copy of which has been served on the other side and about which there is no counter-affidavit. In para. 20 the plaintiff alleges that the documents were received by the office of the Munsif on 6th January 1933 and were actually placed before the Munsif during the course of the argument but that he was pleased to reject the prayer for taking them into evidence.

After the judgment of the trial Court the plaintiff-appellant went in appeal to the lower appellate Court and one of the grounds taken before the lower appellate Court was that the documents sent for from the record-room of the District Judge of Arrah should have been taken into evidence and that the lower appellate Court should either take those documents in evidence itself or send back the case on remand to the trial Court for taking those documents in evidence. While dealing with that point the lower appellate Court evidently looked at the certified copies and came to the following conclusion:

I find that those documents are not very material for the purpose of determining the question whether the disputed land is within the separate holding of the plaintiff or of defendant 1. Therefore I do not see any necessity of admitting those documents in evidence.

Then the learned Subordinate Judge goes on to deal with other pieces of evidence on the record, both oral and documentary. He has not however disposed of the other question as to whether the case should be seat down on remand to the lower Court for admitting those documents in evidence. Evidently he was considering the question whether the documents should be accepted by him on appeal. From this statement of facts it is clear that the plaintiff moved the learned Munsif for sending for the original document. The learned Munsif did not consider his petition frivolous or belated on 25th August 1932 and therefore he sent for the documents as prayed for. Although I was told several times by the learned advocate for the respondents that the appellant ought to have taken some further steps, I am not yet clear in my mind as to what the steps were that the plaintiff ought to have taken, once the letter had been despatched by the Munsif of Buxar to the District Judge''s office at Arrah. The learned Munsif could very easily have rejected the application on the first day on account of that application having been filed late. Now Order 13, Rule 2, Civil P.C. distinctly lays down that:

No document filed at a date subsequent from the date mentioned in Rule 1 shall be received at any subsequent stage unless good cause is shown to the satisfaction of the Court for the non-production thereof.

Evidently the cause shown was not unsatisfactory. The next rule of importance is that the Court may at any stage of the suit reject any document which he considers irrelevant or otherwise inadmissible after recording the ground for such rejection. The learned Munsif did not take the documents into evidence, because according to his idea they did not come before him in time. The lower appellate Court evidently looked at the documents and came to the conclusion that they were not material, but does not say that they were irrelevant or inadmissible. In a way the learned Subordinate Judge has given his opinion about the evidentiary value of those documents without having them on the record.

Various cases have been cited before me as to whether the documents should or should not be taken in evidence by the appellate Court. In the present case we have to distinguish between two things: one a request to the appellate Court to take in evidence documents rejected by the trial Court, and the other is a complaint that a party had not had a sufficient opportunity before the trial Court to produce all the evidence. What-ever may be the position with regard to the power of an appellate Court to take evidence at the appellate stage, so far as the facts of this case are concerned, there is no doubt that the trial before the trial Court has not been a fair one because the parties have not been allowed to put their respective cases properly before it. The strongest case cited by Mr. D.N. Varma for the respondents is one reported in Mt. Taibunnissa Begum v. Jagdip Panday 1924 Pat 517. In that case a document which was rejected was sought to be filed and one of the Judges of this Court sitting singly ordered a remand. In the Letters Patent appeal against that decision of a Single Bench it was held that this Court should not have interfered with the discretion of the appellate Court in refusing to take additional evidence. The document in question was a letter from a certain person which was in possession of a party who sought to produce it at the appellate stage.

The learned Munsif had rejected that evidence on the ground that that evidence was produced at a late stage of the case. The first appellate Court agreed with the Munsif. The Single Judge ordered a remand, but in appeal under the Letters Patent it was held that when the discretion had been exercised, it should not have been interfered with in second appeal. In the present case the position is different as will appear from the narration of facts I have given. The documents sought to be adduced in evidence were not in the possession of the party. They were in the possession of the Court and they had to take the help of the trial Court in order to have those documents before the Court. As against that there is a later decision of this Court, Reazuddin Mian v. Sibnarain Saha 1930 Pat 603, that if the trial Court remanded a case for evidence to be taken which was not allowed to be put in, that was not a matter which should be interfered within revision. All these decisions are however on facts and circumstances of those cases. The whole thing to be seen is whether the parties have had a fair chance of placing their cases before the Court. In this particular case I am of opinion that the plaintiff did all that he could in order to produce those papers.

I would therefore allow this appeal to this extent: that the case will be sent back to the trial Court so that the plaintiff may be in a position to have the documents in question placed before the Court. The trial Court will take the documents into consideration and dispose of the case in accordance with law. It may be necessary for the respondents to produce some rebutting evidence in the case. They should not be debarred from doing that. There will be no order as to costs. Leave to appeal under the Letters Patent is refused.