Raghupat Tewari and Another vs Pandit Narbadeshwar Prasad Tewari and Another

Wort, J.—I agree with the contention of Sushil Madhab Mnlliok who appears on behalf of the respondents that this is a question of fact and therefore I regret having to take the course I am bound to take in this case. In my judgment the case must be remanded to the learned Subordinate Judge. Mr. Sinha who appears on behalf of the appellants contends that the learned Judge in the Court below was not entitled, in spite of the remand order, to take into consideration a judgment in the previous case and the Commissioner''s report which was made in that case, having regard to the fact that the judgment was not inter prates.

Now, as regards the Commissioner''s report, there can be no possible doubt. The Commissioner''s report is nothing more than a piece of evidence used in the case and, if the Commissioner''s report in a previous action to which one of the parties in the present action was not a party was admissible, then there is no reason why all the evidence in the previous suit should not be admitted, even although the party affected thereby had no opportunity to cross-examine the witnesses and thus test their veracity. Quite dearly the Commissioner''s report was not admissible. No possible reason could be given in law to support the judgment of the learned Judge in the Court below on that point.

I should have stated that it was an action u/s 30, Clause (a) of the present Bihar Tenancy Act for enhancement of rent up to the prevailing rate and the learned Judge in the Court below has decided that the prevailing rate was Rs. 2-8-0. Incidentally I might add that he made a mistake in saying that the rent of Rs. 20-6-9 was to be increased to the extent of the prevailing rate, making a total jama of Rs. 78-0-3. In any event that is an error, and even assuming that the prevailing rate is Rs. 2-8-0, that is the total rent per bigha to which the landlord is entitled.

Now, to revert to the point under discussion, I have already held that the Commissioner''s report was inadmissible and I also hold that the judgment was inadmissible in evidence. What was sought to be proved here by the plaintiff was that the prevailing rate was Rs. 2-8-0. In no doing he was not attempting to prove the existence of any right or custom within the meaning of Section 13. His right such as it was given by the statute was a right to have an enhancement if he could establish the facts which would entitle the Court to give him the relief he claimed. "What he sought to establish here was not, as I have pointed out, a right or custom, but what he sought to establish was a fact--a fact which was presumably proved in the previous action to which the present tenant (the defendant in this action) was not a party. The case does not come under any of the sections of the Evidence Act dealing with judgments, viz. Sections 40 to 44, and it certainly does not come u/s 13. Section 13, as I have pointed out on more than one occasion, is nothing more than a declaration of the common rule of evidence in England, but it has been given wider construction in this country; and it is now impossible after the decision of their Lordships of the Judicial Committee of the Privy Council to hold that it is confined as it is confined in England to the proof of incorporeal rights.

But although that be the case in India, I do not propose to extend the application of Section 13 to allow judgments to be used in evidence in oases of this kind which are definitely excluded by the sections of the Evidence Act to which I have referred. How that being the case, and having regard to the fact that the learned Judge in the Court below does not merely deal with the judgment and the Commissioner''s report as part of the evidence but has mainly relied upon them, I have no alternative but to remand the case to be heard and determined eliminating these two objectionable documents. The appeal will be allowed and the case will be remanded to the learned Judge to be heard and determined according to law. Costs will abide the result of the hearing in the Court below.