1. It is contended, and rightly, that Government is not a favoured litigant in Court. I should add that Government cannot get away with it by being an indifferent litigant either. These comments have been provoked by the failure of the Government, as defendant in O.S. No. 114 of 1965, to produce a certified copy of what is called the Middle Income Group Housing Scheme at the appropriate stage in the Trial Court, with the result that at the time of the arguments before the learned Munsiff an alleged copy of the said scheme was placed in his hands, was looked into and acted upon by him and the appellate Court was forced to set aside that decree for the reason that "as the copy placed for perusal is not proved in the case that cannot be acted upon and the lower Court was wrong in deciding the case without proper proof of that record." However, the appellate Court felt "that the State should be given a chance either to prove that record formally or to show to the Court that the same was published in the Government Gazette, in which case the Court could take judicial notice of it." A remand was ordered and the C.M. appellant challenges that order before me.

2. The suit is based on the following facts: The plaintiff had entered into an agreement with the District Collector, Kottayam, who, under the scheme mentioned above, had sanctioned a loan of Rs. 12,000/-, on the plaintiff furnishing security and agreeing to abide by certain conditions not set in Ext. D1. The initial instalment of the loan was given, but, for alleged failure to do the necessary items of work and take the building construction to a stage required under the scheme, the Collector not only did not grant the further instalments of the loan but cancelled the loan altogether under Ext. D2. An appeal carried to the Board of Revenue by the plaintiff proved unsuccessful and thereafter the plaintiff, after complying with S.80, Civil Procedure Code, brought the present suit for damages for breach of contract to grant the loan indicated in Ext. D1 agreement. The defendants, namely, the State and the Collector, denied the liability; for, according to them, the breach was committed by the plaintiff in that he had not complied with the terms and conditions incorporated in the scheme on the basis of which the loan had been sanctioned. The Trial Court upheld the defence and dismissed the suit, but the appellate Court found fault with the Trial Court for resting its judgment on a copy of the scheme which was not properly proved before it but, as stated earlier, gave an opportunity to the State to prove the said document in a proper way and, to enable this to be done, remanded the case. The plaintiffs grievance, inter alia is that there were no rules, and none statutory, as part of the scheme by which he was bound; also the inability to complete the first stage of the construction of the building was largely due to the failure to get the cement permit for which the Collector was responsible, since he rejected the application for cement permit made by the plaintiff. The 2nd defendant - Collector contended that the grant of cement permits was not obligatory on his part before he could insist upon the conditions of the housing loan scheme and if the plaintiff has been disabled from completing the construction as contemplated in the scheme for want of cement that could not stand in the way of the cancellation clauses in the scheme being enforced. Be that as it may, the only question before me is as to whether the order of remand to enable the Court to have the scheme produced and proved before it is legal or not.

3. Order 41 R.27 C.P.C. deals with production of additional evidence in the appellate Court. We are not concerned with clauses (a) and (b) of R.27(1) C.P.C. as amended in Kerala but only with clause (c). Counsel for the appellant contends that only where the appellate Court requires any document to be produced to enable it to pronounce judgment or for any other substantial cause can the appellate Court allow such evidence to be produced. The sine qua non of admissibility of evidence, at the appellate stage, is its own requirement of that document to enable it to pronounce judgment. Where judgment could be pronounced in the absence of the document, the appellate Court should not allow the document to be produced. The true test is, as expounded by the Privy Council and by the Supreme Court, whether the judge considers that he requires the additional evidence to enable him to pronounce judgment. Where the Court requires additional evidence to enable it to pronounce judgment it is no bar to its reception that the party might, if he had been diligent, have produced the same. This being the law, counsel contends that by having recourse to the power of remand the Court should not circumvent the restrictions regarding additional evidence at the appellate stage. The provision that regulates the power of remand is contained in O.41 R.23 C.P.C. The said rule, as amended in Kerala, is rather wide and enables the appellate. Court, if it considers it necessary in the interests of justice to remand the case, to do so and further to direct what issue or issues shall be tried in the case so remanded. The question before me is whether O.41 R.23 or 27 C.P.C. has been violated in this case.

4. One thing is certain, the loan was granted as per Ext. D1 pursuant to the Middle Income Group Housing Scheme. Clause.16 in Ext. 5 (application for loan) asks "whether the applicant is prepared to abide by the terms and conditions of the Middle Income Group Housing Scheme" and the answer furnished by the plaintiff is "yes". Likewise, the order sanctioning the loan, Ext. D6, also states "sanction is accorded for the grant of a loan of Rs. 12,000/- only to the applicant under the Rules of the Middle Income Group Housing Scheme." Indeed, the plaintiff has stated in the plaint that under an agreement between the 1st defendant and himself "the former agreed to lend to the latter on terms and conditions set out in the agreement a sum of Rs. 12,000/- under the Middle Income Group Housing Scheme of the Government ............" Therefore it is beyond controversy that there was such a scheme which formed part and parcel of the transaction between the plaintiff and the defendant in this case. However, Ext. D1 agreement does not set out the details of the said scheme, but by a reference virtually incorporates it:

"WHEREAS the Government have launched a housing scheme for persons coming under the Middle Income Group in the State;

AND WHEREAS in pursuance of such Scheme the Government have granted a. loan of Rupees Twelve Thousand only to the Tenant who is in urgent need of loan for construction of a house;

NOW THESE PRESENTS WITNESS and it is hereby mutually agreed as follows:

5. One may safely proceed, therefore, on the footing that there were terms and conditions set out in the scheme on the basis of which Ext. D1 was executed. To work out Ext. D1 and also to understand when and under what conditions the instalments of loan have to be granted one has necessarily to ascertain the provisions of the said scheme which, if I may say so, serves as the foundation of the rights of the parties to the contract Ext. D1. Without a clear understanding of the clauses of the said scheme and the terms and conditions set out therein to which both parties are committed, it is not possible to state when the plaintiff would be entitled to his second and later instalments of loan and when he can be said to have violated the qualifying conditions for such instalments. In short, the Court needs that document viz., the scheme, to enable it to understand the scope of the suit, the rights agitated, the defence put forward and the decision to be made. O.41 R.27(c) C.P.C. thus seems to have been complied with, since a basic document, like the scheme without which neither the rights nor the contentions of either side can be appreciated nor adjudicated upon is required by the Court for pronouncing the judgment or, at any rate, for a substantial cause. A distinction has to be made between a document which is necessary to prove a partys case and one that is necessary for the court for the purpose of discharging its functions. In cases of the former category, invitation for evidence at the appellate stage by a party, even though it be government, must be resisted while in the latter case even if there be some negligence on the part of the party, including Government, in producing the document, the Court has to allow such evidence to be brought up in appeal, for its own sake. I am satisfied that in the present case, the appellate Court did not transgress the provisions of O.41 R.27(c) of the Code. R.23 is fulfilled if the Court feels that in the interests of justice a remand is necessary. The Court has recorded so in the case and, in the view I have taken, it cannot be said that what has been done by the appellate Court is wrong. After all, whether there is some laches on one side or the other ultimately the Court has got to do justice particularly in a matter like the present one where the impact is upon public interest and public revenue.

6. Counsel for the appellant pointed out that there was no failure on his part in the matter of the application for cement permit and that the statement to the contrary made in the judgment of both the Courts is not born out by the record. May be, he is right and I am sure the Trial Court will reexamine the matter in the light of the documents produced in the case, but I am not too sure whether the collector, acting as a statutory authority under the cement control order, can mix up his functions with those laid on him under the Housing Scheme. Nor can the Collector favour an applicant with cement permit for the reason that in another capacity the Collector has granted a loan to him for the construction of his house as against another who might be in greater need for cement but might not have obtained a loan on which I need pronounce one way or the other at the present stage.

7. Counsel for the appellant is perhaps right in his criticism of the defendants in that the scheme, a copy of which must be with the Government, could easily have been produced by it but was not, notwithstanding the written statement relying on it and the application repudiating the existence of such rules. It is a pity that Government should prove to be a negligent litigant when the document on which the fate of the case itself may turn - and the decision in this case may itself lead to other litigations, if the ultimate issue is adverse to the Government - is within its custody and copies, made out by mechanical processes and certified to be true by the public servant in whose custody it is, could easily be furnished to Court and proved properly. It looks as if a copy of the housing scheme itself has become a scarce commodity because a certified copy has not been produced in the Trial Court, in the appellate Court or even here, and the casual reference in the written statement to its publication in the gazette has not been seriously pursued upto now, so that the specific reference to the gazette publication is not still forthcoming. If a litigation is lost by Government on account of indifference or misconduct of a public servant in its employ, the proper thing is to visit him with disciplinary action in which case, perhaps, there may be better discharge of duties in connection with suits and appeals. And there may be better hope of Courts expecting proper conduct of suits by Government. While it is true that the Court should never extend indulgence to Government so as to give the impression to the public that it is a favoured litigant it is equally necessary to insist that Government does its duties in regard to suits filed by or against it efficiently so that the public interest may not suffer. On the whole, while I must record my regret at the omission to do what is elementary on the part of the Government I decline to upset the order under appeal for reasons which I have already given.

8. Since the whole case has been remanded it is only proper that the Trial Court brings to bear upon the issues in the case a fresh mind and decides the case untrammelled by the observations in the appellate judgment, which the appellant apprehends may foreclose the mind of the learned Munsiff. I want to make this position perfectly clear so that the plaintiff may have a fair chance of presenting his contentions regarding the correct construction of the clauses in the scheme.

9. The C. M. Appeal is dismissed, but there will be no order as to costs.