SATIS CHANDRA BOSE Vs. TAKURDAS MANDAL

JUDGEMENT

(1.) This is an appeal by the plaintiff landlord in a suit instituted by him for enhancement of rent on the ground of a rise in the price of staple food crops. The defendants pleaded that their rent was fixed in perpetuity and was not liable to be enhanced. This they sought to establish by proof that they had paid rent at a uniform rate for upwards of twenty years. The Trial Court found that this allegation was not established and made a decree for enhancement of rent. On appeal, the Subordinate Judge has, by judgment which we are constrained to characterise as extraordinary, set aside this decision and remanded the suit for re-trial. He has come to the conclusion that the evidence adduced by a defendant to prove payment of rent at a uniform rate for upwards of twenty years prior to the institution of the suit is not satisfactory and sufficient; yet he holds that "it will be conducive to the interest of both the parties if the case is remanded to the Court of first instance for trial de novo where both the parties will be at liberty to adduce fresh evidence." The Subordinate Judge has overlooked that the procedure adopted by him is not sanctioned by the Civil Procedure Code.

(2.) In the first place, it was not competent to him to set aside the decision of the Trial Court in favour of the plaintiff on the ground that the evidence adduced by the defendants in support of their plea was not sufficient and satisfactory. Rule 23 of Order XLI of the Code authorises a Court of Appeal to reverse the decree of the primary Court and to remand the case for re-trial, when the suit has been erroneously disposed of upon a preliminary point. Here the suit had been decided on the merits by the Trial Court; consequently Rule 23 was clearly inapplicable.

(3.) In the second place it is plain that the defendants were not entitled to adduce additional evidence, as no case had been made out for the reception of such evidence under Rule 27 of Order XLI of the Code. That rule entitles a party to an appeal to produce additional evidence, whether oral or documentary, if certain specified conditions are fulfilled. One of these contingencies is that the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, but there is no allegation that the Trial Court in the present case had refused to admit evidence tendered by the defendants. Another possible contingency is where the Appellate Court requires a document or a witness to be examined to enable it to pronounce judgment. The present case is obviously not of that description. As observed in Ambuja Ammal v. Appadurai Mudali 30 Ind. Cas. 402 ; 38 M. 414 this can be properly predicted of a case where the mind of the Judge is in such a condition that the evidence in the record does not enable him to pronounce judgment, upon the matter in controversy before him. But, here the Subordinate Judge came to the conclusion that the evidence adduced by the defendant was not satis factory and sufficient to show that the rent had been paid at a uniform rate for twenty years prior to the instiution of the suit. This conclusion would lead forth with to a decision adverse to the defendants. The third possible contingency is that for substantial cause the Court of Appeal may allow additional evidence to be adduced. We need not attempt to define the expression "substantial cause" which has been left undefined by the Legislature; but it is plain that a substantial cause, whatever it may denote, does not include a case where the only ground assigned is that the evidence already adduced by the aggrieved party is not satisfactory and sufficient. If the view taken by the Subordinate Judge were to prevail the result would follow that every unsuccessful litigant would be entitled to claim a remand with a view to adduce additional evidence and have a chance of re-trial. No doubt the expression any other substantial cause leaves a wide discretion to the Appellate Court to admit additional evidence; but the re-trial of a case at the instance of a party who has been defeated and justly defeated because his evidence is insufficient and unsatisfactory, is not necessary for the ends of justice. We may, in this connection, refer to the observations of the Judicial Committee in Kessowji Issur v. G.I.P. Railway Company 31 B. 381 ; 34 I.A. 115 ; 9 Bom. L.R. 671 ; 11 C.W.N. 721 ; 6 C.L.J. 5 ; 4 A.L.J. 461 ; 17 M.L.J. 347 (P.C.) as to the great caution with which additional evidence is to be received in an Appellate Court--evidence which has not been produced in the Court of first instance. We are clearly of opinion that the course adopted by the Court below in this appeal is entirely wrong and its order cannot be supported.