JUDGMENT
1. This is a pltff’s. appeal against the appellate judgment & decree of the learned Dist. J., Udaipur, dated 24-7-47 & arises out of the following circumstances;
2. The pltf.’s firm, which carried on business at Bombay, obtained an ex parte decree from the Small Cause Ct. Bombay, against Heeralal Lodha of Udaipur, for a sum of rs. 1,467-6-6 including cost. The decree awarded future interest on Rs. 1200 at the rate of Bs. 6 per annum. This decree is dated 6-5.1937. The pltf. brought the present suit for the recovery of Rs. 1,467-5-6 the decretal amount & Rs. 301-10-6, interest for 4 years 2 months & 9 days at the rate awarded by the decree, in the Ct. of
City Munsiff, Udaipur. The entire sum claimed was Rs. 1769 in standard coin, which comes to Rs. 2388 20 in Udaipur Coin.
3. Heeralal died during the pendency of the suit & resp. Mt. Jeet Bai, his widow was brought on the record as his legal representative. It was pleaded by the deft, that he was a non-resident foreigner & that an ex parts decree obtained as Bombay could not be made the basis of the suit in Udaipur as the deft, had not submitted to the jurisdiction of the Bombay Ct. This contention was, however, repelled by the first Ct. & first suit was decreed for Rs. 1769 in standard coin. Against his decree, Mt. Jeet Bai went in appeal to the Ct. of the learned Disb. J., Udaipur, who has held the Heeralal was a non-resident foreigner in Bombay & as he bad not submitted to the jurisdiction of the Bombay Ct. no suit could be brought on the basis of the decree. The suit was, therefore, dismissed. Against the appellate judgment & decree the pltf. has come in second appeal to this Ct.
4. It has been seriously contended that the decree in question could be made the basis of the suit unless the deft, submitted to the jurisdiction of the Bombay Ct. This argument, in fact, even if made, could have no substance, in view of the decision of their Lordships of the P.C. in Gurdyal Singh v. Raja of Faridkot, 22 cal. 222: (21 I. A. 171 p.C.). It was held by their Lordships that
“a decree in a personal action pronounced by a Ct. of the native State of Faridkot in absentum against resp. of Jhind who owed no allegiance to the State of Faridkot was, by international law a nullity.”
It was held in Wazir Sahu v. Munsidas, A.I.R. (28) 1941 pat. 109: (20 Pat. 114) that
“a personal decree against a deft, who did not reside in French territory & who did not submit to the jurisdiction of the French Ct. is a nullity.”
In Vithalbhai Shivabha v. Lalbhai Bhimbhai, A.I.R. (29) 1942 Bom. 199: (I.L. R. (1942) Bom. 688), it was held that:
“In an action in personam the fact that the deft, was carrying on business in a foreign country through a manager or agent at the time when the obligation (in respect of which the action is brought) was incurred will not confer jurisdiction on the foreign Ct.”
In view of these authorities we fully agree with the lower appellate Ct. that the decree of the Small Cause Ct of Bombay, mentioned above, could not be made the basis of a suit against the deft. & consequently the suit was rightly dismissed.
5. The learned counsel for the appellant, however, prayed for leave to file a certified copy obtained from the Small Cause Court of Bombay, which is alleged to be an appln. by Heeralal in the suit at Bombay & by which be is said to have submitted to the jurisdiction of the Bombay Ct. It was argued that the document was a very important document & was above suspicion as it was certified copy obtained from Ct. records. It was argued that if that were admitted it would show that Heeralal had submitted to the jurisdiction of the Bombay Ct. & would knock the bottom out of the deft’s. case. The learned counsel is, however, unable to satisfy us why he should be allowed to file this document at such a late stage. This document must have been in the knowledge of the pltff. & it was filed in & case brought by him should have been filed along with the plaint or at the latest till the settlement of the issues. It was, however, not filed till the decision was reached in the lower appellate Ct. The pltff. has been lying on his oars all this time & he should thank his ownself if he had not been able to take advantage of an important pieces of the documentary evidence. Admission of additional evidence at an appellate stage is a very exceptional procedure & no party should be allowed to produce such evidence unites the Ct. requires it to be produced to enable it to pronounce judgment or for any other substantial cause. It was held by their Lordships of the P.C. in Mohd. Akbarkhan v. Mt. Motai, A.I.R. (35) 1948 P.C. 86: (I.L.R. (1947) Lah. 727) that “the power admitting additional evidence in appeal only arises where the ct. requires the further evidence for one of the causes specified in Order 41, Rule 27, C.P.C. that Is, either to enable it to pronounce judgment or for any other (substantial cause. An order under Rule 27, Clause 1 (b) cannot I be made it enable a party to fish out evidence in order to prove his case & makeup a lacuna which then existed.”
In that case a certified copy of Jama Bandi was admitted by the Dist. J. of Peshawar in appeal, but the J. C. North-West Frontier Provinoes allowed the appeal on the ground that the document was wrongly admitted. Their Lordships upheld the view taken by the J. C. Prior to the last mentioned case, the same view was expounded by their Lordships in case reported in Parsotim Thakur v. Lai Mohan Thakur, A.I.R. (18) 1931 P. 0. 143: (10 Pat 654). Their Lordships say
“that the provisions of …. Order 41, Rule 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Cts. to patch up the weak parts of his case & fill up the omissions in the Ct. of appeal …. under Rule 27, Cl. (1) (b) it is only where the appellate Ct. ‘requires’ it
(i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Ct. to pronounce judgment or for any other substantial cause, but in either case it must be the Ct. that requires it. …. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but ‘when on examining the evidence as it stands some inherent lacuna or defect becomes apparent.’ It may well be that the defect may be pointed out by a party, or that a party may move the Ct. to supply the defect, but the requirement must be the requirement of the Ct. upon its appreciation of evidence, as it stands. Whenever the Ct. adopts this procedure it is bound by Rule 27 (2) to record its reasons for so doing, & under Rule 29 must specify the points to which the evidence is to be confined & record on its proceedings the points 60 specified…..The power so conferred upon the Ct. by the Code ought to be very sparingly exercised.”
We, therefore, find ourselves unable to accede to the request of the learned counsel for the applt. The appeal is dismissed with costs.