JUDGMENT - 1. The plaintiff claiming to be a purchaser of the suit properties from one Shivnath -- daughters son of one Bhika -- filed suit No. 59 of 1951 in the Court of the Second Joint Civil Judge, Junior Division, at Ahmednagar, against the defendants who were respectively purchasers of the same property from the widow of Bhika.

The plaintiff claimed that Bhika who died on 7-12-1934 had made a will whereby he had devised the suit properties in favour of Shivnath, and Shivnath had become the owner of those properties and that he claimed a title derived from Shivnath. The suit was resisted by the defendants. They contended that Bhika had not made a will.

2. Before the learned trial Judge evidence was sought to be led to prove the will dated 7-12-1934. The learned trial Judge held that execution of the will was not proved according to the requirements of Section 63, Succession Act and therefore Shivnath could not be deemed to have acquired title to the property of Bhika under the will. On that view of the case the learned trial Judge dismissed the plaintiffs suit.

An appeal was filed in the District Court at Ahmednagar by the plaintiff against the decree passed by the trial Court. In appeal the learned District Judge observed in the course of his judgment that on the evidence as it stood execution of the will was not proved according to law, but he was Inclined to take the view that the plaintiff should be given another opportunity to prove the Will.

It was contended on behalf of the plaintiff before the District Court that there was no denial whatever in the written statements of the first defendant of the due execution of the will that the will was exhibited in evidence before the hearing commenced and that the execution of the will was not seriously challenged in the Court of the first instance, and hence the plaintiff should be given another opportunity to enable him to prove the will as required by the law.

The learned Judge observed that the Court dealing with the question of execution of a will was a Court of conscience and could not allow the last wishes of a deceased testator to be thwarted by legal technicalities arising out of the negligence of the propounders of the will. The learned District Judge therefore thought that it was a case in which another opportunity should be given to the plaintiff to offer proof of the execution of the will so as to satisfy the requirements of Section 63, Succession Act.

The learned District Judge therefore set aside the decree passed by the trial Court and remanded the suit to the trial Court for retrial. In passing the order of remand the learned District Judge thought that ho was justified in relying upon the judgment of this Court reported in -- Vishnu Ramkrishna v. Nathu Vithal, AIR 1949 Born 266 (A).

3. Now under the C. P. Code a litigant is not entitled to have a second opportunity to prove his case. Whatever may be the nature of his case, in the Court of first instance he must lead all the evidence in support of his case. If at the stage of appeal it is found that the Court of first instance has omitted to frame or try any issue or to determine any question of fact which appears to the appellate Court essential to the right decision of the suit on the merits the appellate Court may, if necessary, frame issues and refer the flame for trial to the Court of first instance after taking such evidence as the Court directs.

After the finding of the trial Court on such issues is received, the appellate Court may deal with the matter on the merits. If the Court finds that the Court of first instance has refused to admit evidence which ought to have been admitted, or that the appellate Court itself 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.

Whether additional issues are required to be decided as provided

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