Bhawani Prasad vs Hakimullah And Ors. on 25 October, 1926

Allahabad High Court
Bhawani Prasad vs Hakimullah And Ors. on 25 October, 1926
Equivalent citations: 98 Ind Cas 821
Bench: Ashworth


1. This second appeal arises out of a suit brought by the plaintiff-appellant against the defendant-respondents for a permanent injunction directing the defendants not to interfere with the re-construction of the southern wall of the plaintiff’s house as shown in a sketch map annexed to the plaint. The first Court, took the evidence of the parties and made a local inspection. On the basis of this local inspection it decreed the plaintiff’s claim. On appeal to the Additional Subordinate Judge of Bulandshahr the appellant requested the lower Appellate Court to appoint a Commissioner to make an accurate map and report. This request was granted. The lower Appellate Court found the Commissioner’s map and report in conflict with the inspection note of the Munsif and accepting the Commissioner’s map and report as correct came to a conclusion different from that arrived at by the first Court.

2. The main ground on which the present second appeal is filed is that “the lower Appellate Court was not justified, in appointing a Commissioner and relying on his report as additional evidence without recording reasons therefor. Reliance is placed on Order XLI, Rule 27 of the C. P. C., which states that “the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary, in the Appellate Court. But if (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.”

3. Sub-rule (2) requires that “wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.” It is clear that Order XLI, Rule 27, refers to evidence, oral or documentary, which the parties could have produced at the time of the first hearing. In my opinion, Order XLI, Rule 27 has no direct application to the question of a map and report of a Commissioner appointed by the Appellate Court. A Commissioner may be appointed for local investigation by an original Court under Order XXVI, Rule 9 and under Section 107 (2) Of the C. P. C., an Appellate Court has the power in this respect of a Court of original jurisdiction. It appears to me that the power of an Appellate Court to require an accurate map according to scale to be filed in order to enable it to understand the facts of a case under appeal to it, cannot be questioned on the ground that this is admitting new evidence within the meaning of Order XLI, Rule 27. To hold otherwise would result in a decision arrived at on accurate understanding of the facts being of necessity set aside in second appeal in favour of one not so arrived at. It is urged that, the defendants should have pressed for a map by an amin in the original Court but the defendants would not know that the Munsif was going to inspect the locality and was likely to arrive at the conclusions adverse to themselves. It can hardly be expected that the defendants should put in an application to the Munsif stating that his inspection note and conclusions, were wrong (even, if these conclusions were known before the judgment was pronounced) and asking for the appointment, of a Commissioner to make a map. I, therefore, find no force in the contention of the appellant based on the lower Appellate Court’s reference to the Commissioner’s map and report.

4. The second ground is based on an alleged admission of the defendants. The lower Appellate Court was entitled to disregard, an admission, if it found its truth inconsistent with other reliable evidence and in second appeal no objection can be taken to the lower Appellate Court for having done this.

5. For the above reasons I find that no appeal lies and this, appeal is dismissed under Order XLI, Rule 11, C. P. C.

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