1. The plaintiff sued for a declaration of title in respect of certain lands bought by him (from one Venkatachalam Pillai) under a registered sale-deed and for cancellation of an attachment order which had been passed against the properties. The defence was that the sale was a colourable transaction to defeat creditors and that it was for an inadequate consideration. In the Court of first instance, the plaintiff succeeded in obtaining a decree. The defendant examined no witnesses and filed no documents to prove his case. When the case came up in appeal, the District Judge, apparently suo motu, made an order remanding the casa for fresh evidence to be taken and calling for a finding upon the issue whether the silo was for grossly inadequate consideration. The finding was in favour of the plaintiff but the lower appellate Court took the contrary view on the evidence and dismissed the plaintiff's suit.
2. It is contended for the appellant that the District Judge was wrong in remanding, the suit for fresh evidence when the defendant had deliberately stated in the lower Court that he had no witnesses at all.
3. We think the contention must be upheld. The District Judge does not state under what provision of law he purported to act in making his order. Both sides refer to O. 41, R. 27(b) of the CPC as the provision of law under which the District Judge called for fresh evidence, and we must take it that it was under that rule that the District Judge acted. It has been laid down by the Privy Council in the case of Kessowji Issur v. G.I.P Ry. Co.(1) that “the legitimate occasion for Section 568” (now O. 41, R. 27 of the CPC) “is when on examining the evidence as it stands some inherent lacuna or defect becomes apparent, and not where a discovery is made outside the Court of fresh evidence and the application is made to import it.” Here there was no such inherent lacuna or defect on the evidence as it stood, for so far as the defendant was concerned it was a case of no evidence at all. For the defendant (respondent), reliance is placed upon the words “or for any other substantial cause” which co-our in O. 41, R. 27(b). The case Andiappa Pillay v. Muthukumara Thevan(2) is cited as authority for the view that these words should not be construed in the narrow sense suggested by the doctrine of ejusdem generis. It was contended that the appellate Court had by virtue of these words as wide powers as the original Court to admit fresh evidence in order to do justice, subject to restrictions in the in terests both of discipline and of preventing concoction of evidence: (see the judgment of the High Court in Second Appeal No. 819 of 1911 unreported.) We are however not prepared to go so far as to say that when a party has declared that he has no witnesses in the Court of first instance, the appellate Court has power under the order and rule quoted to call for fresh evidence which admittedly was not forthcoming at the trial on behalf of that party. To do so would, in our opinion, open the door to concoction, a possibility against which Sundira Aiyar, J., was careful to guard in his judgment in Second Appeal No. 819 of 1911 above quoted.
4. We must therefore set aside the decree of the District Judge and remand the appeal to the District Court for disposal according to law upon the evidence as it stood before the Court of first instance at the original trial.
5. Costs will abide and follow the result.
S.N/R.K
6. Order set aside.