The main legal point established in the judgment is that the lower appellate Court must fulfill the conditions under Order 41, Rule 27 and 29 before summoning and examining a witness, and that the judgment should not be materially influenced by incompetent testimony.

Rajamannar, J.

1. This second appeal arises out of a suit brought for the recovery of a sum of Rs. 4,387-4-0 as arrears of rent and the Jenmabhogam due to the plaintiffs tarwad under a kaichit dated 28th August, 1929, executed by defendants 1 and 2 in favour of the plaintiffs tarwad and interest thereon. The main plea of the defendants was a plea of discharge and in support of it they produced three receipts, Exs. II, III and IV and a letter Ex. V. All these documents bear the signature of Chappunni Valia Nair, a former karnavan of the plaintiffs tarwad, who died sometime in June, 1939 and was succeeded by the plaintiff. The defendants also say that there is a signature of the plaintiff himself on Ex. II. The plaintiff denied that there was any payment as recited in the said receipts. He denied that he ever signed on Ex. II. He further pleaded that these receipts must have been granted by the kariasthan at the time one Krishna Menon to defendants 1 and 2 as a result of fraud and collusion between them and him. The learned Subordinate Judge of South Malabar on a consideration of the oral and documentary evidence tendered by both the parties, held against the defendants plea of discharge and granted a decree to the plaintiff. The defendants appealed to the District Judge, South Malabar. After hearing arguments in part, the learned Judge summoned Krishna Menon, the kariasthan as a Court witness and allowed him to be cross-examined by both sides. He took into account his evidence along with the other evidence already on record and disagreeing with the trial Court, dismissed the plaintiffs suit.

2. Among other grounds, Mr. Sitarama Rao for the plaintiff-appellant in the second appeal put forward as a main ground that the lower appellate Court was not entitled in law to summon and examine Krishna Menon and the conditions requisite under Order 41, Rules 27 and 29 were not fulfilled in this case. It is common ground that the only provision which applies to this case is Order 41, Rule 27, Clause (c)(as amended in Madras) which is as follows:

(c) 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.

3. Rule 29 of Order 41 is as follows:

where additional evidence is directed or allowed to be taken, the appellate Court shall specify the points to which the evidence is to be confined and record on its proceedings the points so specified.

4. It is not disputed that at the time when the learned District Judge decided to examine Krishna Menon as a Court witness, he did not pass any order giving any reasons for the course that he was taking. The diary for the case shows as against 2nd September, 1943, the following entry:

Respondents arguments also heard in part. The appeal is posted to 7th September, 1943, to examine T. Krishna Menon as a Court witness. Emergent summons will be issued to him.

5. On 7th September, 1943, Krishna Menon was examined as a Court witness; the arguments were completed the next day and judgment was reserved. The judgment was finally pronounced on the 21st September, 1943 and in paragraph 5 of the judgment the learned Judge explains why he thought it was necessary to examine Krishna Menon. He says that he felt that the evidence on record was not sufficient to enable him to come to a conclusion on the point involved in controversy and that it was necessary to record the evidence of the erstwhile kariasthan, that is Krishna Menon, who had not been examined either by the plaintiff or by the defendants in the lower Court or by the lower Court as a Court witness although it was definitely alleged on the plaintiffs side and found by the lower Court on the materials on record that the receipts had been granted by him as a result of fraud and collusion between him and the defendants. Admittedly, except in this paragraph, there is nowhere else any record of any reasons. Obviously, the procedure indicated in Order 41, Rule 29