MONIRUDDIN SARKAR Vs. MOCHHABIN MONDAL

JUDGEMENT

(1.) IN this case the plaintiff filed his suit for recovery of four plots of land but, with regard to plot No, 2, he came to terms with the defendant No.. 7 and that plot dropped out of consideration. The first Court passed a decree in his favour for plots Nos. 1, 3 and 4 against defendant No. 9. The defendant No. 9 appealed to the Court of the District Judge. At the very end of the proceeding after arguments had been heard on the 6 March 1908, the District Judge admitted and marked as an Exhibit a solenama which had been filed by the plaintiff and the defendant No. 9 in a case under Section 426, I. P. C., in the Criminal Court. He delivered judgment on that day without having complied with the formalities required by Section 568, Civil Procedure Code, 1882, and apparently, without giving the plaintiff any opportunity of meeting that piece of evidence. By his decision, the learned District Judge modified the decree of the first Court disallowing the plaintiff's claim with regard to the 1 Pakhi of land, the subject of the solenama, and, in other respects, dismissed the appeal of the defendant No. 9. The plaintiff has appealed to this Court and the only question before us is whether the learned District Judge was right in taking the course above stated. The learned pleader for the appellant has cited the case of Kessowji Issur V/s. Great INdian Peninsula Railway Company 31 B. 381 : 11 C.W.N. 721 : 6 C.L.J. 5 : 4 A.L.J. 461 : 2 M.L.T. 435 : 9 Bom. L.R. 671 : 17 M.L.J. 347. That case was very different in its facts from the present but their Lordships of the Privy Council laid down in very clear terms the scope of Section 568, C.P.C. They said "the legitimate occasion for Section 568 is when on examining the evidence as it stands some inherent lacuna or defect becomes apparent, not where a discovery is made outside the Court of fresh evidence and the application is made to import it." That appears to have been the case here. But apart from that, it is clear that the learned District Judge did not comply with the requirements of Section 568, C. P. C. 1882. Not only did he mark the solenama as an Exhibit after the case had been closed but he did not record on the proceedings of his Court the reasons for admitting such additional evidence. We think that, for these reasons, his order in that respect cannot stand. His decree must, therefore, be set aside and the decree of the first Court restored, At the same time we do not think that there is much merit in the plaintiff's case. We, therefore, make no order as to the costs of this appeal.