G. M. LODHA, J. - (1.) THIS is a civil second appeal filed by the plaintiff appellant against the judgment & decree passed by the District Judge, Bharatpur accepting the appeal of the State defendant and reversing the judgment of the Civil Judge, Bharatpur.
(2.) THE substantial question of law framed by this Court on 14. 11. 77 while admitting his appeal for consideration, reads as under. " whether the judgment of the appellate court is in violation of the provisions of S. 43 of the Evidence Act and, therefore, it is illegal" section 43 of the Evidence Act reads as under-"43 Judgment, etc, other than those mentioned in sections 40 to 42, when relevant. Judgments orders of decrees other than those mentioned in sections 40,41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provision of this Act. " It appears from the judgment of the appellate court that the judgment was not passed only on the judgment of criminal court. Gordhan Das, the plaintiff appellant, was prosecuted of S. 406 IPC by Ramjilal alias Keshav. Gordhan Das was acquitted by the criminal court as before the criminal court, he gave a written undertaking that he would hand over the money of the goods to Ram Gopal or any other person whosoever is found ultimately to be the owner of the goods. It is true that the judgment of the criminal court as such, is not binding on the civil court but, the fact of the undertaking having been given and the acquittal having been obtained on that count as appears from the judgment was never disputed. Contrary to it, the learned counsel who, appeared before the appellate court, when confronted with the situation, conceded that so far as the plaintiff is concerned, the question of ownership does not arise. The crucial discussion in this discussion in the judgment of the appellate court reads as under: An argument was made by the learned counsel for the State that the plaintiff appellant has not produced his accounts books, and he has not shown that he was owner of this property. Learned counsel for the plaintiff accepted that his client has failed to prove that he is owner of this property. Even if it is assumed that the judgment of the criminal court was not admissible under S. 43 of the Evidence Act, yet if on non-production of the accounts book, the plaintiff's counsel conceded that he has failed to prove his ownership, the first appellate court was not mistaken in reversing the judgment.
(3.) THE remedy of the plaintiff appellant in case of wrong admission of this nature by the learned counsel on question of fact lies, if any, against the person who makes wrong mention against the interest of his client and, no grievance is made, so far as the criminal court is concerned, I am, therefore, of the opinion that there is no error of law much less substantial error of law is involved in this appeal. It is true that the judgment of the criminal court cannot be used for the purposes to prove that whatever has been written in this is correct as S. 43 of the Evidence Act clearly lays down that they are irrelevant unless comes under the exceptions covered by Ss. 40, 41 and 42 it is not necessary for the purpose of this court to consider, whether any of the exceptions can be invoked or not, because as 1 have already observed above that the admission was not on the question of law but on question of fact. The learned panel lawyer appearing for the State relied upon the decisions of this court and the apex court in Thiru John Vs. Returning Officer (1), Gulkandi Vs. Prahalad (2) and Narayan vs. Gopal (3 ). ;