Damri Choudhry and Another vs Nathuni Mia and Others

Kulwant Sahay, J.—This is an application u/s 25, Provincial Small Cause Courts Act, on behalf of the plaintiffs in the suit. The suit was for the recovery of a sum of money on the basis of a bahi khata account.

The plaintiffs'' case was that the defendants who are father and three sons, carried on business jointly with the plaintiffs and at the end of the year 1336 a sum of Rs. 3-5-0, was found due and that in 1337 in the month of Pus articles were purchased by the defendants from the plaintiffs'' shop of the value of Rupees 183-4-0. The total claim was for Rs. 189-5-0, besides interest at 18 per cent per annum. The defendants denied the plaintiffs'' claim. They alleged that they had got no firm known as Nathuni Mia Nabi Mian in which name the account in the plaintiffs'' book stood and that they did not carry on any transaction with the plaintiffs. Their allegation in the written statement was that a false suit had been brought by the plaintiffs out of grudge.

At the trial Ramdeo Choudhary, one of the members of the plaintiffs'' firm, gave his evidence. He proved that the defendants have got a shop at Tulin and that the transaction between the plaintiffs'' firm and the defendants used to be entered in the books which were produced and proved to have been written by the witness himself; they were marked as Exs. 1 and 2.

In his examination in chief Ramdeo Chowdhary stated that the suit had not been brought by the plaintiffs out of grudge. In cross-examination he stated that it was Nanki Mian, one of the defendants, who purchased the articles worth Rs. 183-4-0 and he named three persons as being present at the time, of whom Ram Chariter Chowdhry was examined as P.W. 2. He also named the cartman who took the articles away from his shop. There was no cross-examination on the point that the suit had been instituted out of grudge. (After discussing the evidence of the remaining plaintiffs'' witnesses and that of the defendant, the judgment proceeded). On this state of the evidence the learned Judge has found that the plaintiffs have failed to prove their claim. He observes that the oral evidence adduced by the plaintiffs is extremely unsatisfactory. He disbelieved Ram Chariter Choudhary merely on the ground that he being a shop-keeper it was hardly probable that he remembered to have seen Nanki taking articles from the plaintiffs'' shop in Pus last year. As regards Barhamdeo Chowdhary he dismissed him with the observation that he does not support the plaintiffs'' case by saying that the defendants jointly carried on karbar with him, the case of the defendants being that they did not carry on business jointly.

The learned Judge does not notice the evidence given by the plaintiff Ramdeo Chowdhary at all. He dismissed the plaintiffs'' account books with the observation that they by themselves are not sufficient evidence to prove the plaintiffs'' claim. He then adds that it is not very difficult to fabricate such books at any time. The plaintiffs appear to be a respectable firm of merchants carrying on extensive business as appears from the books filed. Absolutely no reasons have been given why the plaintiffs should institute a false case against the defendants.

The learned Judge evidently does not believe the defendants'' story of a quarrel about the sale of articles in a certain hat because he does not notice this fact in his judgment. It is true that the account books by themselves cannot prove the transaction as they are mere corroborative evidence; but the learned Judge does not say why he should disbelieve the plaintiff Ramdeo, when he is corroborated by the entries in the books produced by him and absolutely no reason is given why any suspicion should attach to the books produced by him. It is hardly proper to stigmatize the books of a respectable firm as books which it is not difficult to fabricate without coming to a specific finding that the books produced in this case were as a matter of fact fabricated and without giving reasons therefor.

The learned Judge concludes his judgment by saying that it is not probable that the plaintiffs delivered articles worth Rs. 183-4-0 to defendant 3 without any sort of security. He does not refer to any evidence where in transactions such as the one before us securities are taken generally by merchants when selling merchandise to retail dealers. The judgment of the learned Judge therefore appears to me to be extremely unsatisfactory.

It is true that in an application u/s 25, Provincial Small Cause Courts Act, the High Court will not generally interfere with finding of facts; but where it is shown that the findings are such as could not have been arrived at upon the state of the evidence on the record, it is open to this Court to interfere in revision u/s 25.

I have given in detail the substance of the evidence in the case and on that evidence I see no justification for the learned Judge dismissing the suit without considering the circumstances set out by me above.

The decision of the learned Judge therefore cannot be maintained. It must therefore be set aside and the case remanded for rehearing by another Small Cause Court Judge at the place. There will be no order for costs in this Court.