M. Nataraja Mudaliar vs Ponnu Kannammal

Basheer Ahmed Sayeed, J.—In this revision petition the main point that arises for consideration is whether the learned trial Judge who

decreed the suit against the defendant had committed an error of law in not having adverted himself to the available records on file in the suit, viz.

the vakalat and the plaint, when coming to the conclusion as to whether Ex. D. 1 in the suit did or did not contain the thumb impression of the

plaintiff.

The suit was for the recovery of the sum of Rs. 200 being the balance refundable from out of a sum of Rs. 300 entrusted to the defendant by the

plaintiff. The defendant denied having had any transaction with the plaintiff and denied liability to refund any amount to the plaintiff. The decision in

the case rested mainly upon the oral evidence of the plaintiff and the defendant. The lower Court believed the version of the plaintiff and decreed

the suit for the sum of Rs. 112-13-0. While believing the version of the plaintiff, the trial Court did not take into consideration an important

circumstance which militated against the credibility of the evidence of plaintiff, viz. that while the plaintiff had affixed her thumb impression to Ex. D.

1 a counterfoil of Ex. P. 2 a receipt issued for the sum of Rs 84-11-0 by the Co-operative Credit Society, she denied the fact of her thumb

impression in toto. This further involved the question as to whether the transaction with the said Co-operative Credit Society was directly done by

the plaintiff or it was arranged for by the defendant on behalf of the plaintiff. A proper determination of this fact was very vital to the decision in the

suit as to who was speaking the truth. The learned trial Judge failed to appreciate this question of fact involved in the case in the legal manner.

The learned counsel for the petitioner urges that this failure on the part of the learned trial Judge constitutes an error of law. He contends that in

so far as the decision of the suit depended upon the acceptance of the oral testimony of either the plaintiff or the defendant, it was incumbent upon

the learned trial Judge to find out whether the plaintiff''s version was true or the defendant''s version was true, and particularly so with reference to

a definite circumstance which was brought to the notice of the Judge, viz. the denial by the plaintiff of the fact of having put her thumb impression

on Ex. D. 1. If the learned trial Judge had only compared the thumb impression of the plaintiff on Ex. D. 1 with her thumb impression on the other

documents available to him on the file, it was just possible that the learned trial Judge would have come to the conclusion that the evidence of the

plaintiff was not worthy of credence. There is considerable force in this contention.

As already observed, this fact as to whether it was true or not that the plaintiff put her thumb impression on EX. D. 1 was of vital importance, in

determining as to who was speaking the truth in the case. The trial Judge ought to have applied his mind to this relevant circumstance before he

made up his mind to believe one of the versions. In so far as the learned trial Judge has failed to perform this duty and has simply contented himself

by saying that he had no means of verifying whether the thumb impression appearing in Ex. D- 1 was really that of the plaintiff or not, while actually

ample means were readily available to him, he must be considered to have committed an error of law. This error consists in that he failed to

determine the question of fact when it was vital to the decision in the case. It will not be sufficient explanation, as contended by the learned counsel

for the respondent, that the attention of the learned trial Judge was not drawn to the existence or availability of the material on record to enable the

required comparison of the impressions. This view is supported by the decision in AIR 1943 208 (Privy Council) . In that case their Lordships of

the Privy Council have defined what constitutes a question of law, and have also held that when any Court fails to appreciate a question of fact

which is vital for the determination of the issue in the suit, it must be considered to be an error of law. The said decision has also discussed

elaborately what exactly are the limits of the questions of law and questions of fact. Following this decision, I feel that the learned trial Judge did fail

in his duty in the appreciation of relevant evidence, which went to the root of the matter, and I consider that there has been an error of law on his

part which entitled the defendant to take up the matter before the Full Bench of the Court of Small Causes by way of a new trial application u/s 38,

Presidency Small Cause Courts Act and the rules framed thereunder. This ground has been specifically taken in the application filed by the

defendant before the Full Bench of the Presidency Small Cause Court. But the Full Bench of that Court has summarily dismissed the application of

the defendant without examining the question of law raised by the defendant. Section 38 and Rule 7 (b) of Order 41, Presidency Small Cause

Courts Act in my opinion do cover the present case. Such being the case, the Full Bench of the Presidency Small Cause Court was not justified in

dismissing the application without going into the case. Whenever it is found that the findings of the trial Court are not supported by the evidence

and are such as to justify interference in revision, as has been laid down by the learned Judge in C. Kuppiah Chetty Vs. P. Saraswathi Ammal and

Others, the proper course for the Full Bench of the Small Cause Court would be to send back the matter to the trial Court for fresh trial and

decision according to law. It is to be seen from this decision that the jurisdiction of the Full Bench of the Presidency Small Cause Court is not

always confined to questions of law alone. In view of what I have stated above, I hold that the Full Bench of the Presidency Small Causes Court

was not right in having dismissed the application in limine. I direct that the application should be restored to file and dealt with according to law

after notice to the parties.

The petition is allowed with costs.