- (1.) This matter has been brought before the court in the manner of a First Appeal from Order, but it has to be treated as a revision inasmuch as the order in question is not subject to appeal but is open to revision. The facts are these. The Plaintiff-opposite-party made an application Under Section 12 of the Agriculturists' Relief Act for redemption of certain mortgage, alleging that the provisions of the U.P. Agriculturists' Relief Act were available to him. The Defendant-opposite-party asserted that the provisions of that Act were not applicable. The Munsif dismissed the application on the ground that there was no proof that the original mortgagor was an agriculturist on the date of the loan, namely, on 19-7-1884.
(2.) The Plaintiff preferred an appeal before the lower appellate court. The judgment of the lower appellate court bears out that it was conceded on behalf of the Plaintiff that on the evidence on the record it was not possible for the Plaintiff to contend that it was proved that the original mortgagor was an agriculturist on the date of the mortgage. It was, however, contended before the lower appellate court on behalf of the Plaintiff that indulgence should be given to the Plaintiff to file documentary evidence to prove that fact and twelve copies of village extracts were filed in that court to sustain the contention that the original mortgagor was an agriculturist on the date of the loan. The Respondents vehemently opposed the prayer of the Plaintiff-Appellant in the lower appellate court and contended that the lacuna in the evidence cannot be made up by fresh opportunity to the Plaintiff to file fresh papers. The lower appellate court considered the question and observed as follows: The point raised before me was that the Appellant was an old and illiterate parda nashin lady and got the case in the court below conducted by her Pairokor Mewa Singh, her Pattidar and distant relation and that she was never instructed by that Pairokar either as to the necessity for the disputed papers or about their availability. She has filed an affidavit to that effect. The affidavit shows that she never knew that it was necessary to prove that the original mortgagor was an agriculurist on the date of loan or that the only evidence permissible under the law was documentary. She has further sworn that her Pairokar never told her that documentary evidence should be filed. There is no counter-affidavit. I, therefore, take it as true that the lady never knew personally and was never made to understand by her Pairokar that such papers were necessary in order to enable her to obtain the relief claimed. I trust that it is a case in which the lady was one who could noi have filed the papers with due diligence inasmuch as she was never made to believe that it was obligatory upon her to file these papers. I would, therefore, allow the papers to be filed, but this must be conditional on payment of costs as the Pairokar was certainly negligent in not informing her about the necessity of filing these papers and she must pay the penalty for the negligence of the Pairokar. I would, therefore, impose a cost of Rs. 75/-.
(3.) Upon that observation the lower appellate court allowed the appeal, set aside the decree and judgment of the trial court and remanded the case for a fresh trial after the admission of the evidence that the Plaintiff intended to produce.;