K JOSEPH THOMPSON Vs. NALLATHAMPI NADAR

JUDGEMENT

(1.) THIS civil revision petition has been filed to revise the judgment of the learned Subordinate judge, Kuzhithurai in A. S. No. 192 of 1978 reversing the judgment of the learned District Munsif, Kuzhithurai in O.S. No. 461 of 1977 and decreeing the suit as prayed for with costs throughout.

(2.) THE suit was filed for recovery of Rs. 758.42 as principal and interest of Rs. 98.54 at 12 per cent, per annum from 25th May, 1976 on the allegation that the plaintiff/ respondent was subscribing to 1 6th share in a chit for which the monthly premium was Rs. 500, namely, Rs. 50 per mensem and he had paid actually a sum of Rs. 758.42 upto 25th May, 1976 in the course of 21 months as premium and that the defendants did not conduct the chit later and he was. therefore, entitled to recover the, aforesaid sum of Rs. 856.96. THE respondent had sent a notice Exhibit A-1. dated 15th July 1977 before the institution of the suit and it was returned unserved. He alleged that the chit was conducted by the first petitioner as the foreman and that the second petitioner the brother-in-law of the first petitioner was the real foreman and he therefore tiled the suit against both the petitioners.

(3.) THE trial Court accepted the defence and dismissed the suit believing the evidence of D.Ws 1, 5, 3 who had spoken about the execution of. the receipt and the promissory note Exhibits B-6 and B-2 respectively by the plaintiff and also observing that the respondent as P.W. 1 had admitted in cross-examination that he had no transaction with the second petitioner and that he had not issued any notice of suit to the second petitioner and the second petitioner, therefore, is not a necessary party to the suit. But on appeal the learned Subordinate Judge rejected the contention that no appeal was competent in view of section 96 (4) of the Code of Civil Procedure and he disbelieved the evidence of D.Ws. 1 to 3 and accepted the evidence of P.W. 1 and found that Exhibits B-2 and B-6 were not genuine, that the second petitioner was the real foreman of the chit and that both the petitioners were liable for the suit amount and he allowed the appeal and decreed the suit with costs throughout.