Ramlakhan Pande vs Dharamdeo Misir

Bucknill, J.—This was an application in civil revisional jurisdiction made under the provisions of Section 25 of the Provincial Small Cause Courts Act. The facts in the case were very simple. The plaintiff brought a suit against the present applicant on a hand note for Rs. 400 alleged to have been executed by the applicant in favour of the plaintiff on the 11th November 1923. The suit was brought on the 13th November 1925. The defence was in effect that the thumb impression of the defendant had been taken on a blank piece of paper by the maliks of lands which he cultivated on bhaoli rant for the purpose of converting such rent into naqdi rent and that the plaintiff succeeded in some way or other, in collusion with one Kanahya Lal, who was a servant of the maliks, in turning this blank thumb marked paper into a hand-note.

The Small Cause Court Judge found in favour of the plaintiff and decreed the suit. The applicant has put forward two points in respect of which he claims that this Court should exercise its revisional jurisdiction.

I will take the second point first. The learned vakil suggests that, although the plaintiff''s case was that the hand-note was executed in November, 1923, yet, when giving evidence in March 1926, the Finger Print Expert, who was called for the plaintiff, deposed that the thumb impression might be five years old or more. The learned vakil suggests that, under such circumstances, such a statement would throw considerable doubt upon the date attributed to the hand-note by the plaintiff and would support the applicant''s claim that the actual date on which the thumb impression had been placed upon a blank piece of paper was of a date considerably anterior to November 1923. I do not think there is much force in this contention; for if the evidence of the Finger Print Expert is examined, it will be observed that he frankly admits that there is doubt as to the age of the thumb impression: and, indeed, I should be very chary in accepting an opinion as to the age of a thumb mark as fixing the date of the document when such date is markedly opposed to the date which appears upon the document itself so long as no serious extraneous testimony controverts the date which appears on the document.

Now, the first point which is put forward by the learned vakil who appears for the applicant has considerably greater force. It appears, as I have said, in the first instance, that the suit was commenced on the 30th November 1925, and that the 8th January was fixed for its disposal. On that date the defendant was present: he filed his written statement: the plaintiff prayed for time and the matter was adjourned to the 25th January and it was directed that the parties should be ready with their evidence on that date. On the 9th January the plaintiff filed his list of witnesses and diet expenses and it was directed that summonses should issue to these witnesses at once. On the 16th January defendant filed his list of witnesses: according to his list he desired to examine four persons: the defendant at the Same time filed the diet expenses.

Now for some reason or other, which is not altogether very clear to me (unless it be as is suggested by the learned vakil, who appears for the opposite party here, that it is customary to expect that at least a fortnight''s notice is given by parties wishing to summon witnesses) the Small Cause Court Judge did not make any order as to summoning the defendant''s witnesses on his application what he did do was to say; "Put up on the date fixed as it is near." On the 25th January no summonses had been issued by the Court to the defendant''s witnesses and the defendant asked for an adjournment which was refused. Then the Judge passed an order to the effect that the defendant had applied too late on the 16th January and that he (the Small Cause Court Judge) would not issue any summonses to the defendant''s witnesses. The case then proceeded and the defendant did what he could. He examined himself and one witness whom he had succeeded in obtaining, but the other three were not present as no summonses had been issued to them. The plaintiff''s efforts, as I have said, were unsuccessful, but he now complains, and I think with some justification, that under the circumstances the Small Cause Court Judge was at fault in acting as he did. After all, the defendant did put forward a bona fide list of witnesses on the 16th whatever rule of practice there may be in the mofussil as to the period which must exist between the filing of the list of witnesses and the date fixed for hearing.

We find that, as a fact, the case did not conclude until the 17th of March and there was in my view ample time for the Small Cause Court Judge to have issued the summonses to the defendant''s witnesses even without, on the 16th, contemplating an adjournment of the date of the hearing itself which, as I have said, was fixed for the 25th of January. Under these circumstances I have come to the conclusion that justice has not been done to the defendant.

The principles upon which trial Courts should be governed with regard to the issue of processes to witnesses may be seen in such cases as Bhagwat Das v. Debi Din [1894] 16 All. 218 and Jadunandan Singh Vs. Sheonandan Prasad Singh and Another, .

The learned vakil who has appeared here for the opposite party has ingeniously suggested that the proper course for the applicant to have taken was to have applied in revision to this Court immediately after the order of the 25th January, when, for the first time it seemed clear that the Small Cause Court Judge refused definitely to summon the defendant''s witnesses. I think that it is possible that he might have applied then and there: but I do not know of any reason why he should not now apply, as he has done after the case is over. There are sometimes advantages in applying to this Court in an interlocutory matter but there is also obviously at times some disadvantage; if applications in revision were forthwith made in every case where it was thought that part or the whole of an interlocutory order of the trial Court was wrong this Court would be inundated with a vast number of applications with which it would be practically impossible to deal. At any refer no authority has been quoted to me, and I am satisfied that there is probably no good authority, for the suggestion that it is not possible now for the applicant to raise this point in revision before me.

Having, therefore, come to the conclusion that the Small Cause Court Judge has acted illegally and to the serious prejudice of the applicant in refusing to summon his witnesses I think that the only course properly to be adopted will be to send the matter back for a re-trial.

As Mr. T.D. Mukherji, the Subordinate Judge of Arrah, sitting as a Small Cause Court Judge has already tried and decided the case, I think that it would be undesirable that he should deal with it again as he must perforce have made up his mind to a large extent upon the merits of the action. Under these circumstances, therefore, the case must here-tried by another competent judicial officer possessing the powers of a Small Cause Court Judge. The judgment, therefore, of the Small Cause Court Judge of the 17th of March last will be set aside and the case remanded for re-hearing in accordance with the directions; given above.