(1.) The plaintiff instituted a suit for recovery of the balance due to him on account of bricks and tiles supplied to the defendant. He filed with his plaint an, account book, Oft May 21, 1931, he alleged before the Munsif of Kishungung that a page had been taken fro his account book and a forged page substituted for it. According to the plaintiff the missing page contained the account as made tip between the parties on July 26, 1929, attested by the defendant's signature. An enquiry was held by the Munsif who reported that the plaintiff's allegation was untrue. The suit was then tried by another Munsif. It was found that the plaintiff had failed to prove that the account had been made up as he stated in July, 1929 and that he had failed to prove that he delivered to the defendant the number of bricks and tiles which was stated in the plaint. The suit was therefore dismissed. The District Judge on appeal discussed in detail the plaintiff's claim to have supplied bricks to the defendant. According to the plaintiff the total number supplied was 6,52,100 bricks and 10,300 tiles. The defendant required the bricks, for the erection of a building for the District Board at Bahadurgunj. He thus accounted for only 5,04,000 bricks. The plaintiff says that the defendant had used some of his bricks for the construction of the quarters of the Sub-Registrar and that he had sold some bricks locally.
(2.) The defendant, denied that he had ever taken the contract for the construction of the Sub-Registrar's quarters and it appears that the contractors were Messrs. Arthur Butler and Co. Further confusion was introduced by a suggestion that the defendant was a sub-contractor under Messrs. Arthur Butler & Co. The bricks made by the defendant before the letters G.P. and the learned District Judge considered that the plaintiff ought to have taken out a commission for the examination, of the bricks used for the construction of that building in order to see whether they bore these initials or other initials. Another disputed item was the supply of 10,300 tiles. The defendant said that the plaintiff had fever supplied any tiles to him; but he said that the plaintiff had made some for Messrs. Arthur Butler and G.P. with which the defendant had nothing to do. The plaintiff said that all the tiles prepared by him for the defendant bore the letters G.P. and that if the tiles used in making the roof of the Sub-Registrar's quarters were examined and counted, 10,000 tiles bearing those letters would have been found. This argument appealed to the learned District Judge who said that he was prepared to give an opportunity to the plaintiff to prove by further evidence his allegation that 10,000 or more tiles were supplied to the defendant. As I have said the learned District Judge remarked that the plaintiff ought to have taken out a commission for the examination of the bricks used in the construction of the Sub-Registrar's quarters. It is perhaps needless to remark that additional evidence obtained in his way would not be conclusive, because it would not prove that the bricks had been supplied to Messrs. Arthur Butler and Co., by the defendant or that it was the defendant who was taking them from the plaintiff. A similar inconclusive result might possibly have been obtained from the examination of the tiles which might confirm the plaintiff's case that he had supplied tiles for that particular roof; but it would not necessarily show that he had supplied them to the defendant. The learned District Judge thinking that the plaintiff had erred in failing to apply for a commission before the Munsif was prepared to remand the case in order to enable him to, repair this error; but since it was clear that the mere appointment of a commissioner would not produce any conclusive result, the learned Judge directed that the plaintiff should be given an opportunity to adduce such further evidence in the case as he might consider necessary. It is to be remarked that the learned District Judge did not find that any irregularity in the trial had been committed by the Munsif, but he found that if the plaintiff had conducted his case with greater attention, he might possibly have produced evidence which would have told him in his favour. The learned District Judge then set aside the decree of the Munsif and remanded the case for retrial directing that the parties should be at liberty to adduce such further evidence as they might consider necessary. The plaintiff prays for revision of that order.
(3.) Mr. Manohar Lal argues in the first place that the learned District Judge was not entitled thus to enable the plaintiff to produce additional evidence. He relies principally, upon the decision of the Judicial Committee in Parsotim Thakur V/s. Lal Mohan Thakur 132 Ind. Cas. 721 : 12 P.L.T. 683 : A.I.R. 1931 P.C. 143 : 33 Bom. L.R. 1015 : (1931) A.L.J. 513 : 35 C.W.N. 786 : Ind. Rul. (1981) P.C. 209 : 31 L.W. 16 : 51 C.L.J. 1 : (1931) M.W.N. 929 : 10 Pat. 651 : 61 M.L.J. 489 : 58 I.A. 254 P.C., wherein it was pointed out by Sir George Lowndes that the provisions of Section 107 of the Civil P. C. are not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his; case and fill up omissions in the Court of appeal. In that case the question of whether a thumb impression was genuine or not was regarded as important and the respondent applied in the Appellate Court to be allowed to give evidence of its genuineness. This was permitted; but the Privy Council held that the additional evidence ought not to have been admitted because if the respondent had desired to give evidence as to the thumb impression, they had ample opportunity to do so in the trial Court. It was pointed out that it is only where the Appellate Court finds evidence actually needful that additional evidence can be admitted. As Sir George Lowndes says: It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it.