Decided on January 15,1960

BADRI Appellant
RAGHUNATH Respondents


- (1.)This is an appeal against the order of the Additional Commissioner Jaipur dated 20.5.59 by which he accepted the appeal filed before him by the respondent and ordered the case to be remanded after setting aside the exparte orders of the trial court, for letting the respondents have an opportunity of adducing their evidence and then passing orders afresh in accordance with law.
(2.)We have heard the learned counsel for the parties and examined the record as well. The only point argued on behalf of the appellant is that the learned lower appellate court could not order the setting aside of the exparte decree and passing new orders after letting the respondents have an opportunity of producing their evidence. The argument is that as such an order could be passed only under O. 41, R. 27 C.P.C. and that under the provisions of sub sec. (2) thereof read with rules 28 and 29 of that order, the learned lower appellate court should either have taken such evidence itself or directed the trial Court to take such evidence and sent it back, to the lower appellate court after taking the same. In effect what is meant to be contended is that the decree of the learned trial court could not have been set aside before taking the additional evidence and considering the case by itself along with that evidence and then coming to a conclusion by the first appellate court itself in that behalf.
(3.)Manifestly this line of reasoning seems to be untenable in law. Under O. 41, R. 27 an appellate court may allow (1) the admission of an evidence which ought to have been admitted but which has been refused by the trial court or (2) the admission of an additional evidence which the appellate court requires to be produced to enable it pronounce its judgment or for any other substantial cause. Under sub -sec. 2 read with rules 28 and 29 it is only when an additional evidence referred to at (2) above that is required to be taken in one way prescribed by rule 28. In case of allowing the admission of evidence which ought to have been admitted but which has been refused to be admitted by the trial court, the procedure prescribed by rule 28 is not whether laid down to be followed. In this particular case the evidence of the plaintiff -appellant had been closed by him on 7.1.51. 18.1.58 was fixed for the production of the evidence of the defendant -respondent. But it could not be recorded that day because the witnesses did not appear for want of service of summons to them. On next date 25.2.58 some of the witnesses were present and others were absent due to some reasons. Their statement could not however be recorded on that day because of the absence of the presiding officer on tour and the hearing was adjourned to 5.4.48 and the witnesses present were ordered to appear on that day. On 5.4.48 the presiding officer was present and so was the Vakil for the plaintiff -appellant. But nobody was present on behalf of the defendant -respon -dcnt. Nor any of his witnesses were present. The learned trial court therefore passed an order that exparte proceeding be taken against him and also passed an order that his evidence be closed and the case was adjourned for hearing of the arguments. On the next date 7.4.58 the defendant -respondent submitted an application that he could not be present at the time of hearing on 5.4.58 as when the case was called he went to call his Vakil who was busy in the court of the District Judge and was therefore delayed and in the meanwhile an exparte order was passed. This application was heard by the learned trial court on 11.4.58 and was rejected. Why it was rejected, no reasons have been assigned in the order. In the same order, however it is written that during the course of arguments the counsel for the defendant -respondent requested for taking the deposition of the respondent and the same was taken. No appeal was filed by the respondent against this order. But he went in appeal against the final order of the trial court decreeing the suit. In appeal one of the points raised by him was that he had not been given an opportunity to produce his evidence. In fact this was the only point which seems to have been argued before the learned lower appellate court, who held that the application of the respondent for setting aside the exparte order and letting him an opportunity of producing his evidence had been wrongly rejected and passed the orders as already narrated above.

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