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1949 DIGILAW 75 (SC)

KANDA v. WAGHU

1949-12-06

LORD SIMONDS, SIR JOHN BEAUMONT, SIR LIONEL LEACH

body1949
Judgement Appeal (No. 42 of 1947) from a judgment and decree of the High Court (May 12, 1944) in a Letters Patent appeal, which affirmed two judgments and a decree of that High Court (July 16, 1942) which had set aside an order of the District Judge, Montgomery at Lahore (December 19, 1941) which in turn had reversed a judgment and decree of the Court of the Subordinate Judge, Montgomery (November 29, 1940), dismissing the appellants suit. The following facts are taken from the judgment of the Judicial Committee. The parties in this appeal were Dadra Rajput, an agricultural tribe of the Montgomery District of the Punjab. The appeal arose out of a suit brought by the appellants in the Court of the Subordinate Judge, Montgomery, challenging the validity of a deed of gift, executed on December 17, 1938, by Mussammat Raj an, the first defendant, in favour of her grandson, the second defendant, who was the respondent in the appeal. The first defendant was the widow of one Amira, who died in or about the year 1913. The respondent was the son of a daughter of Amira and the first defendant. On the execution of the deed of gift the respondent applied for mutation of names in the records kept by the land revenue authorities, but the Assistant Collector refused the application on the ground that "a female has, under no circumstance, a right to alienate property by sale" or by way of charity under a will, oral or in writing, " and his decision was upheld by the Collector on appeal. Thereupon the respondent filed a suit in the Court of the Subordinate Judge, Montgomery, for a decree for the possession of the land.’ The only defendant was the donor, and on November 9, 1939, with her consent, the court passed a decree in the terms of the prayer in the plaint. Two days later the appellants, who were collateral members of the respondents family, filed in the Subordinate Judges court the suit which had given rise to this appeal. The appellants pleaded that the land was ancestral, that the gift of it to the respondent was contrary to custom, that the mutation of names had been rightly refused and that the respondent had obtained by fraud the decree passed in his favour on November 9, 1939. The appellants pleaded that the land was ancestral, that the gift of it to the respondent was contrary to custom, that the mutation of names had been rightly refused and that the respondent had obtained by fraud the decree passed in his favour on November 9, 1939. They asked for a decree declaring that the deed of gift was null and void as against them and, therefore, did not affect their reversionary rights. The respondent filed a written statement, in which he denied that the land was ancestral. He alleged that the parties were governed by Mahomedan law, under which there were no restrictions on the donors powers of alienation, that the revenue officers had erred in refusing mutation of names, and that the decree in the previous suit was good. In a separate written statement the donor supported the respondents case. After the evidence had been closed and the case had been adjourned for the hearing of the arguments the first appellant applied for leave to file certified copies of two extracts from public records, which were said to have a bearing on the question whether the land was ancestral. Order XIII, r. 1, of the Code of Civil Procedure, required the parties or their pleaders to produce at the first hearing of the suit all documentary evidence on which they intended to rely, and r. 2 provided that no documentary evidence in the possession or power of a party, which should have been, but was not, produced in accordance with the requirements of r. 1, should be received at any subsequent stage of the proceedings, unless good cause was shown to the satisfaction of the court for its non-production. The court receiving such evidence must record the reasons for so doing. The Subordinate Judge rejected the application on the ground that it was no stage to accept additional evidence when the defendant had closed his rebuttal and the case had been adjourned for the hearing of arguments. In his judgment, which was delivered later, the Subordinate Judge held that the appellants had failed to prove the custom alleged by which a widow could not give her deceased husbands property to her daughters son, that the land was not ancestral, that in the absence of custom Mahomedan law governed the case and that under such law the gift was valid. In accordance with those conclusions he dismissed the suit, with costs. The appellants appealed to the District Court. In addition to challenging the findings of the Subordinate Judge they said that he had erred in refusing to admit the further evidence. The District Judge held that the Subordinate Judge was perfectly justified in refusing to admit the documents at the time when the court had only to hear the arguments, and that no case had been made out for their admission in appeal. He also agreed with the Subordinate Judges finding that the land was not ancestral, but he held that the parties were governed by custom in the matter of alienation and he sent the case back to the trial court for decision on a further issue which he framed in these words "The land in suit having "been found to be non-ancestral, do the collaterals exclude " the daughters son according to the custom of the parties " and is the gift, therefore, invalid?" That issue did not arise on the pleadings. Both sides appealed to the High Court at Lahore. The appeals were heard by Bhide J., who, held that the Subordinate Judge had been right in not admitting the two documents in evidence, but that the District Judge had erred in framing a new case for the appellants, and in remanding the suit for trial on the new issue. He agreed that the land was non-ancestral. The result was that the learned judge dismissed the appellants appeal and accepted that of the respondent. The appellants then filed an appeal under the Letters Patent of the High Court. That appeal was decided by Din Mohammad and Mehr Chand Mahajan JJ., who upheld the judgment of Bhide J. 1949. Nov. 8. Ralph Parikh for the appellants. The merits of the case are not involved in the appeal the Board are here concerned with points of procedure. In the Punjab the first rule of decision is custom Punjab Laws Act (IV of 1872). The Subordinate Judges order on the application to produce the certified copies from public records that this is no stage to accept additional evidence when the defendant has dosed his rebuttal, and the case has been adjourned for "arguments" is erroneous in law. It would not appear that their admission is a matter of discretion when public documents are sought to be put on record. It would not appear that their admission is a matter of discretion when public documents are sought to be put on record. There might be something to be said where it is a private document. There could be no attack made on a public document produced by a government officer. Whether it is discretion or not turns on the construction of Ord. XIII, rr.1 and 2 of the Civil Procedure Code. If good cause is shown the evidence has to be admitted. Good cause was shown here. It was said on this point in Gopika Raman Roy v. Atal Singh (( 1929) L.R. 56 I.A. 119, 127.) that " even where the " rules of exclusion apply and the documents cannot be filed " without the leave of the court, that leave should not ordinarily be refused where the documents are official " records of undoubted authenticity which may assist the " court to decide rightly the issues before it. These documents were not in the appellants possession, and there is a statement in the application that they did not know of their existence before October 17, 1940—the date of the application. In the words of the Board in Gopikas case (( 1929) L.R. 56 I.A. 119, 127.), "it cannot" be said that they should have been produced at the first" hearing and therefore the rule does not authorise the "exclusion." There is a presumption in favour of such documents being admitted in evidence even at a late stage It is submitted that they would clearly help the court to decide whether the land was ancestral or not. If the Board is of opinion that the documents should have been admitted in evidence, then the judges in India have not considered all the evidence in this case, and it should be remitted for that purpose. It is next submitted that permission should now be given to the appellants to amend the plaint to include the new issue framed by the District Judge. Eshenchunder Singh v. Shamachurn Bhutto (( 1866) 11 Moo. I. A.7, 20.) is irrelevant as it was under the old Code. There are two subsequent decisions under the current code—s. 153 and Ord. It is next submitted that permission should now be given to the appellants to amend the plaint to include the new issue framed by the District Judge. Eshenchunder Singh v. Shamachurn Bhutto (( 1866) 11 Moo. I. A.7, 20.) is irrelevant as it was under the old Code. There are two subsequent decisions under the current code—s. 153 and Ord. VI, r. 17—dealing with this question of amendment, the first in favour of the appellants, the second against them Chandran Das v. Amir Khan (( 1920) L.R. 47 I. A. 255.), Ma Shwe Mya v. Maung Mo Hnaung (( 1921) L.R. 48 I.A. 214.). The question of the remand is mixed up with that of amendment of the plaint the Board can still hold, although refusing amendment, that the District Judge was right in sending the case back Ord. XLI, r. 23. The District Judge was justified in remanding the case, and also in directing the trial of the new issue. Jayakar for the respondent was not called on. Dec. 6. The judgment of their Lordships was delivered by SIR LIONEL LEACH, who stated the facts set out above and continued In their appeal to His Majesty in Council the appellants maintain that the Subordinate Judge wrongly refused to admit the additional evidence and that the District Judges was right in framing the new issue and in remanding the case to the trial court for further hearing. They ask that leave be granted to them to amend the plaint in order to cover the new issue. On the question whether the Subordinate Judge erred in refusing to admit the two documents, Mr. Parikh laid stress on Gopika Raman Roy v. Atal Singh (( 1929) L. R. 56 I, A. 119,127.), where Sir John Wallis, in delivering the judgment of the Board, said that where the rules of exclusion apply and the documents cannot be filed without leave of the court, that leave should not ordinarily be refused where the documents are official records of undoubted authenticity, which may assist the court to decide rightly the issues before it. It would be erroneous to read these observations as implying that there is no discretion left in a trial court when it is a matter of admitting public records at a late stage. It would be erroneous to read these observations as implying that there is no discretion left in a trial court when it is a matter of admitting public records at a late stage. The court has discretion and while, generally speaking, it will be a wise exercise of the discretion to admit such evidence, the question must be decided in each case in the light of the particular circumstances. The only reason disclosed by the appellants in their application for the admission of the documents at that late stage was that they had no knowledge of them before, The District Judge in his judgment pointed out that apparently neither the appellants nor their counsel had consulted the revenue records before filing the suit and ignorance of entries therein would not provide a sufficient excuse for the delay in making the application. Three appellate courts in India had held that the Subordinate Judge exercised a wise discretion in refusing to admit additional evidence and their Lordships are not prepared to say they were wrong in so holding. Their Lordships agree with the learned judges of the High Court that the District Court erred in framing the new issue and in sending the case back to the trial court for further hearing. As already indicated, the question embodied in the additional issue was not raised in the pleadings. The appellants founded their claim on the ground that the land was ancestral and it was on that ground that they challenged the right of the widow to make the gift. Not once during the proceedings in the trial court did they suggest that even if the land was found to be non-ancestral the widow would still be incompetent to dispose of it. In Eshenchunder Singh v. Shamachurn Bhutto (( 1866) 11 Moo. I. A. 7, 20), Lord Westbury described it as an "absolute" necessity that the determinations in a cause should be " founded upon a case to be found in the pleadings or involved "in or consistent with the case thereby made. " The course decided on by the learned District Judge offended against this principle and their Lordships consider that he was rightly overruled. In asking the Board to allow the plaint to be amended at this stage attention has been drawn to the provisions of s. 153 and Ord. VI, r. 17, of the Code of Civil Procedure. " The course decided on by the learned District Judge offended against this principle and their Lordships consider that he was rightly overruled. In asking the Board to allow the plaint to be amended at this stage attention has been drawn to the provisions of s. 153 and Ord. VI, r. 17, of the Code of Civil Procedure. The powers of amendment conferred by the Code are very wide, but they must be exercised in accordance with legal principles, and their Lordships cannot allow an amendment which would involve the setting up of a new case. The judgment of the Board delivered by Lord Buckmaster in Ma Shwe Mya v. Maung Mo Hnaung (( 1921) L.R. 48 I. A. 214, 217.) is directly in point. It was there held that it was not open to a court under s. 153 and Ord. VI, r. 17, to allow an amendment which altered the real matter in controversy between the parties. The application for leave to amend it rejected. Their Lordships will humbly advise His Majesty that the appeal should be dismissed. The appellants will bear the costs.