P L D 1964 Dacca 627 (PLP)

This second appeal arises out of a suit for setting aside a solenama decree passed in Title Suit No. 82 of 1940, by the Munsif 2nd Court, Serajganj on 18‑12‑1941.

2. Plaintiff's case, briefly stated, is that in the aforesaid Title Suit No. 82 of 1940, defendants of this suit were plaintiffs and that the plaintiff of this suit and others were defendants. To be precise, the plaintiff was shown as defendant No. 3 of that suit. He claims that he did not enter appearance through Mr. Bhupesh Chandra Basu or any other lawyer. The Suit No. 82 was com promised and the petition for compromise was filed by the said lawyer. The written statement filed in the aforesaid suit is denied to have been signed by the plaintiff. By virtue of the said com promise petition, defendants of this suit who were plaintiffs of that suit got some land and they claim to have been in possession of the same. It is further alleged by the plaintiffs that the defend ants brought Title Suit No. 4 of 1957 for declaration of title and for khas possession. The plaintiff got notice on 25‑5‑57 and on enquiry, he learnt that a fraudulent decree was obtained on 28‑5‑

57. The present suit, has, therefore been instituted for setting aside the fraudulent solenama decree and for restoration of the suit to the file.

3. The defendants Nos. 1 to 9, and 21 to 23 have contested the suit and filed written statement denying the material allegations and they have also claimed that the suit is barred by limitation. It has been specifically asserted that the plaintiff duly received the summons in the aforesaid Title Suit No. 82 of 1940, and the sole nama is a genuine one. In these circumstances it is claimed that the plaintiff's suit should fail.

4. Mr. D. L. Rahman, learned Advocate for the appellants, submits that the plaintiff is a person who is able to sign his name any how and, in fact, he signed his name in the vokalatnama and he appended his signature to the written statement. Although the compromise petition was not signed, but he gave authority to the pleader to compromise, if necessary and he was bound by the same.

5. The learned Munsif in dismissing the suit has held that Exh. A‑1. the written statement, shows that the plaintiff signed the same and the learned Munsif has further held that Exh. B was signed by the authorised lawyer Babu Bhupesh Chandra Basu. Reliance has also been placed on the decree of the Court which has been made Exh. D in this suit. The learned Munsif has reviewed the oral and documentary evidence and he is of opinion that there is no ground for thinking that a respectable pleader would be a party to the fraud. So the learned Munsif has found that the plaintiff's story cannot be accepted and the sole nama should be allowed to stand. He dismissed the suit also on the ground that it was barred by limitation. The learned Subordi nate judge who heard the appeal reversed the decision of the trial Court and held that it has not been established that solenama has been filed with the knowledge and consent of the plaintiff and the sole‑decree made in pursuance of the same cannot be allowed to stand. The learned Subordinate Judge, therefore, declared that the solenama etc. filed on 18‑2‑41, in the aforesaid Title Suit No. 82 of 1940, were collusive and fraudulent and he directed the sole?decree to be set aside.

6. Mr. D. L. Rahman, in these circumstances, prays that he should be allowed to adduce additional evidence in this case. The additional evidence sought to be adduced is a document which is claimed to have been signed by the plaintiff on 21‑12‑

41. The written‑statement was filed in the suit on 29‑4‑1940. That being so, Mr. Rahman contends that this document would show that the plaintiff was able to sign his name. Therefore, the found ation of his claim that he did not know how to sign the name at all, would be nullified. This document he contends will help the Court in reaching the correct conclusions in this behalf.

7. Fazlul Karim, learned Advocate appearing on behalf of the plaintiff ‑respondent, however, argues that the defendants have already adduced evidence to establish that the plaintiff was able to sign his name. The present document is therefore merely for purpose of corroboration and in the circumstances, he submits that the defendants are not entitled to claim permission to adduce additional evidence in the case.

8. Order XLI, rule 27, provides that the parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate Court. This is a general provision prohibiting admission of additional evidence at the appellate stage. This general provision has been relaxed in certain circumstances. One such circumstance, is if the Court from whose decree the appeal has been preferred has refused to admit the evidence which is sought to be admitted now. There is no such allegation. Therefore, the present application cannot be brought within the scope of the same.

9. The next circumstances in which the appellate Court may permit such evidence to be adduced is when the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or any other substantial cause. Mr. Rahman has strenuously argued that his docu ment should be admitted under the latter circumstances and it comes within clause (b) of rule 27 of Order XLI. I have given my anxious consideration to this application but it seems to me that the document which is sought to be produced cannot be said to be one which is required by the appellate Court to enable it to pronounce the judgment. This is apparent from the fact that there is already evidence before the Court that the plaintiff is able to sign his name and therefore the Appellate Court may dispose of the case and pronounce its judgment on the evidence already adduced before it. It, therefore, cannot be said to require the evidence which is now sought to be adduced. The Court may require any additional evidence for a substantial cause but that expression does not mean that a Court should allow an additional evidence on the ground that the evidence which is sought to be adduced was neither known nor available before. This principle finds support in the case of Amina v. Akshoy (A I R 1936 Cal. 31). It is true, it cannot be said that the defendants were guilty of negligence or laches but the fact remains that the defendants have already given such evidence as they could and this new evidence is merely for the purpose of giving more weight to the evidence already led in the case. For the sake of finality in judicial determinations such a course has been viewed with disfavour. To hold otherwise would be to create a sense of want of finality in the decrees of the Court. Therefore, in accordance with the well laid judicial principles the discretion for allowing fresh evidence should be exercised most cautiously and sparingly. I cannot in these circumstances, enter tain this petition. In this connection I may refer to a decision of Madipati Narasimhamurti and others v. Hayat Khan and others (A I R 1940 Mad. 911), in which Leach, C. J. delivering the judgment of the Division Bench observed that where additional evidence is allowed for the purpose of providing corroboration for oral testimony which had been disbelieved by the trial Judge, and the oral evidence was com plete had it been believed, the additional evidence being unneces sary for the Courts to appreciate a party's case or to pronounce judgment on it, cannot be allowed under Order XLI, rule 27.

10. In this case the evidence adduced by the defendants was undoubtedly complete. That being so, the application for taking of additional evidence is rejected.

11. Mr. Rahman has, however, argued that the learned Judge has not adverted to the reasons given by the learned Munsif in disagreeing with him and, therefore, his contention is that the case should go back on remand to the Court of appeal below. He submits that the learned Munsif has been careful in assessing the evidence and the learned Subordinate Judge has not made exhaus tive reference to the evidence led In the case and therefore, the learned Judge's finding to the effect that he does not believe that the present plaintiff entered appearance in the title suit in question through any lawyer or authorised any lawyer to file any written-statement is somewhat abrupt as he does not advert to the reasons given by the learned Munsif. On a perusal of the judgment of the Court of appeal below, it appears to me that the learned Judge has taken notice that the pleader who filed written‑statement Exh. A‑1 has deposed as witness No. 2 for the plaintiff and has admitted that he has no independent recollection of the case and that his deposition was on the basis of the relevant papers. The learned Judge has noticed that he is unable to remember that the present plaintiff was present at the time of filing the written‑statement. From this it can be gathered that there is no reflection on the learned lawyer Mr. Bhupesh Chandra Basu. What the learned Judge has said is that his evidence is not such as to give any conclusive material for the determination of this suit, and in that way the learned Judge has dealt with the same. He has also considered the evidence of the defendant's witnesses and he does not think they are reliable. The position in law is very clear that in a second appeal even if it is found that a contrary finding is possible this Court should not interfere with the finding of the last Court of fact. In this case although it can be said the discussion of evidence is not as elaborate as that of the learned Munsif, I am satisfied that the salient features have been duly considered and no interference with the judgment and decree of the Court of Appeal below is called for. The appeal is accordingly dismissed without any order as to costs. S. Q.??????????????????????????????????????????????????Appeal dismissed.