Jangi Mahto and others vs Muni Mahto and others

Jwala Prasad, J.—This is an application under S. 25 of the Provincial Small Cause Court Act against the decision of the Small Cause Court Judge of Saran dated the 22nd June, 1921. The plaintiff''s suit was based on a hand-note executed by the father of defendants 1 and 2 and by brother of defendant No. 3. It purported to bear the thumb impression of the executant. The finger-print expert as observed by the Court below proved that the thumb impression, though slightly blurred, was that of Etwari Mahto. The signature on the hand-note of the executant appears to have been made by the pen of his son, Muni Mahto, defendant No. 1. Muni''s signature on Exhibit 2-B seems to resemble his signature on the hand-note. The Court below, however, thought otherwise.

The case was decided by the Court below against the plaintiffs upon the ground that plaintiff No. 3 had deposed in a former case that he had not got any hand-note bearing the thumb impression of Etwari. That deposition is dated the 28th January, 1918. The Court below, therefore, infers that hand-note in question was not in existence; but he failed to appreciate that the question was asked in the cross-examination on behalf of Etwari himself, the suggestion being that such a hand-note was executed by Etwari and was in the possession of the plaintiff.

That was a suit for the redemption of a mortgage bond with respect to a land which was purchased by the plaintiffs.

The plaintiffs'' case in that case was that the money due under the mortgage bond was paid off. The defendants'' case was that the money due under the mortgage bond was paid off. The defendants'' case was that the money was not paid and whatever money was received was covered by the hand-note in question. The plaintiff who was examined as a witness in that case therefore, thought that if he had admitted the hand-note in question, his redemption case would be prejudiced.

Apart from this, the deposition is not capable of this sole interpretation that no hand-note was executed. Another reason given by the Court below for disbelieving the plaintiffs'' case is that the plaintiff No. 3, although summoned as witness by the defendants, did not appear in Court and deny the statement contained in his deposition of the 4th April, 1918, referred to above.

Plaintiff No. 3 was a party to the suit, and the Court had ample power to direct his personal appearance under Order 3, Rule 1, C. P. C., failing which he could have been dealt with properly in the case. The whole case has been decided on the aforesaid considerations, and the oral evidence in the case relating to the execution of the hand-note in question was therefore lost sight of and has not been dealt with. The decision of the Small Cause Court Judge should therefore be set aside.

The parties, however, do not want a remand of the case and have come to terms in this Court. They have filed a petition of compromise whereby it has been agreed that the suit be decreed in favour of the plaintiffs for Rs. 100, each party bearing its costs throughout. The case must therefore be decided in accordance with the terms of the compromise petition and decree prepared embodying the terms.

There will be no order as to costs in favour of any of the parties incurred in any of the Courts.