N.M.KASLIWAL, J. - (1.) THIS is a defendant's second appeal in a suit for compensation decree by both the courts below. The plaintiff -respondent Modaram filed a suit against the defendant - appellant on the allegation that the defendant was running an oil factory and flour mill known as the Rajasthan Oil and Flour Mills at Nokha. The plaintiff was an employee in the service of the defendant and use to take oil cakes from the machine. No safety measures had been introduced by the defendant in the factory, as a result of which the plaintiff lost his right hand on March 8, 1966 while working in the factory during the course of employment. The plaintiff claimed an amount of Rs. 8,000/ - by way of compensation. The case of the defendant was that though he was running the Rajasthan Oil Flour Mills at Nokha but the plaintiff was not in his service and (he plaintiff did not receive any injury in his Mill. On the basis of the aforesaid pleadings of the parties, the trial court framed the following issues: (1) Whether the plaintiff was a Workman on 8.3.1966 at a monthly wages of Rs. 100/ - in the factory of the defendant named & styled as the Rajasthan Oil and Flour Mills? B P. (2) Whether the defendant did not maintain the security arrangement as mentioned in para 5,1, and 2 of the plaint and better particulars and as such he was negligent? B P. (3) Whether the plaintiff's wrist was cut on 8.3.1966 as it was entangled in a machine and due to that the fracture of arm was also caused and it disabled permanently the plaintiff? B.P. (4) Whether the plaintiff is entitled to get damages amounting to Rs. 8000/ - as mentioned in para 6 of the plaint? (5) Whether the plaintiff suffered the injuries due to his contributing negligence and as such he is not entitled get to the damages? B.D. (6) Whether the Civil Judge was not competent to hear this suit? B.D. (7) Whether the suit is time barred? B.D. (8) Relief. The learned trial court after considering the evidence led by the parties decided all the issues in favour of the plaintiff and decreed the plaintiff's suit with costs to the extent of Rs. 5,880/ - and dismissed the rest of the claim by judgment and decree dated February 10, 1971. Both the parties filed appeals against the judgment and decree of the trial court. The learned District Judge, Bikaner, by his judgment dated September 8,1971 dismissed both the appeals and affirmed the judgment and decree passed by the trial court. The defendant had filed the First Appeal in the court of the District Judge on March 19, 1971. On July 22, 1971, the defendant -appellant also filed an application under Order XLI, Rule 27, C.P.C. for permitting him to produce additional evidence consisting of the muster roll and attendance register. The learned District Judge, after considering all the authorities cited by the parties held that the defendant could not be permitted to file muster roll and register and the application of the defendant dated 22.7.1971, was rejected. The learned District Judge, thereafter, considered the case on merits and upheld the judgment of the trial court. The defendant aggrieved against the judgment of the learned District Judge, has filed this Second Appeal. The plaintiff has also filed a cross objection.
(2.) IT is contended by Mr. R.L. Maheshwari, learned Counsel for the appellant, that though the learned District Judge dismissed the application filed by *he defendant -appellant under Order XLI, Rule 27. C.P C. but subsequently in the judgment placed reliance on the muster roll and the register to hold that the plaintiff Modaram was in the service of the defendant. It was,, thus, contended that the learned District Judge, under these circumstances, should be taken of the view that he was considering these documents necessary for pronouncing the judgment It is argued that if the learned District Judge had placed reliance on these documents to hold that the defendant was in the employment of the plaintiff, in that case an opportunity ought to have been granted to the defendant to prove these documents and the application filed by him under Order XLI, Rule 27, C.P.C. should not have been dismissed. It is also argued that these documents were not produced in the trial court as he was not given a proper legal advice. An affidavit was also filed in support of the application and the same was not controverted and under these circumstances, the appeal should be allowed and the appellant should be permitted to lead the evidence with regard to these additional documents filed before the first appellate court and the case should be decided thereafter, reliance is placed on Ramjiwan v. Roopchand A.I.R. 1956 Raj. 1 and Venkataramiah v. Seatharama Reddy A.I.R. 1963 S.C. 1526. On the other hand, it was contended by the learned Counsel for the plaintiff -respondent that the main controversy between the parties was whether the plaintiff was in the employment of the defendant or not on March 8, 1956, and in case, the defendant wanted to prove the muster roll and the attendance register to establish that the plaintiff was not in his employment, then it was his duty to have produced these documents before the trial court. The documents in question are private documents whose genuiness has been doubted by the lower appellate court itself No reason has been given that these documents were not available with the defendant during the trial of the case. Even the application and the documents were not filed along with the memo of appeal and it was
(3.) ONLY after four adjournments that such application was tiled when the arguments were going to be heard on the merits of the appeal, it is further submitted that the learned District Judge has given cogent reasons for dismissing the application filed by the defendant -appellant under Order XLI, Rule 27, C.P.C.;