LAKSHMANAN CHETTIAR Vs. PERIAKARUPPA THEVAR AND OTHERS

JUDGEMENT

(1.) The plaintiff has preferred this second appeal from the decision in appeal of the learned District Judge of Madurai dismissing the plaintiff's application for the passing of a final decree in a mortgage suit and setting aside the final decree granted by the trial court. The learned District Judge would hold that the application for final decree was barred by limitation, the document relied on as acknowledgment being an ante -dated one. The suit the mortgage was filed on 19th July 1955 and a preliminary decree was passed on 7th March 1956 granting three months time for payment of the decree amount. The application for final decree, the dismissal of which on appeal is now in question, was filed on 7th March 1961, the plaintiff praying for a decree for sale of the secured property for recovery of the sum of Rs. 9462 -11 -3 due in terms of the preliminary decree, giving credit for a sum of Rs. 50 stated to have been paid by the judgment debtor. The application for final decree in the normal course should have been filed on or before 7th June 1959, and the plaintiff sought to get round the bar of limitation by the averment that the judgment debtor, the first defendant, on 16th October 1958 acknowledged the decree, making a part payment of Rs. 50. Ex. A. 1 bearing date 16th October 1958 is the acknowledgment relied upon. The document, referring to the mortgage suit and the decree therein, purports to record a payment of Rs. 50 towards the decree amount. It is signed by the first defendant on a ten naya paise revenue stamp. The scribe of the document is Govindaswami Naidu who also shows himself as an attestor. Ramanatha Chettiar is another attestor and both have come and given evidence. It is not disputed that, if Ex. A. 1 is a genuine document executed by the first defendant on the date it bears, Ex. A. 1 would save the application from being barred by limitation. The substantial defence to the application for final decree from the defendants was that there was no payment of Rs. 50 under Ex. A. 1 by the first defendant on behalf of himself and the other members of the family and that the document Ex. A. 1 was a forged and fabricated one. In any event, it was said that it was an ante -dated one he only issue that was raised before the trial court was the bar of limitation; and, besides examining the attestor and scribe of the document, the first defendant examined himself as R.W. 3. On the side of the plaintiff, the plaintiff was the sole witness. The learned Subordinate Judge was of the view that no weight could be attached to the oral evidence of the respondents' witnesses and that Ex. A. 1 was a true document executed on the date which it bore. A final decree naturally followed. The lower appellate court on its consideration of the evidence would hold that Ex. A. 1 was not executed on the date it bore and that no amount was paid here under. In the result, it held that the preliminary decree had become barred by limitation. It is apparent from the above -mentioned facts that the sole and substantial question for consideration the case was whether Ex. A. 1 is an ante -dated document brought about after the expiry of the period of limitation. The question whether a document is ante -dated or not is clearly one of fact and on this the courts below have differed. There can be no doubt that merely because the courts below have differed and the judgment on appeal is one of reversal, it does not give this court jurisdiction in second appeal to interfere with the findings of fact and this is substantially the contention of the respondents before me. Learned Counsel for the appellant submits that though apparently there Ss reasoned finding of fact in the appellate judgment, the learned District Judge has ignored material evidence and relied on perverse probabilities and misplaced the burden. It is submitted that this was a case where the truthfulness of the out evidence of the witnesses was in question and the learned District Judge has failed to appreciate the proper approach for an appellate Court in such a case. It may be said that the first submission is perilously on requiring the second appellate court to examine the appreciation of evidence made by the lower appellate court. Respondents' Counsel would submit, that, even if the appreciation of the evidence made by the lower appellate Court is patently erroneous and the consequential inference of fact grossly erroneous, the second appellate Court cannot re -examine the finding. But there can be no doubt that under S. 100(1)(c) C.P. Code, this Court in second appeal has jurisdiction to interfere with conclusions of the lower appellate court, if there is a substantial error or defect In the procedure provided by the Code or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merit. For this Court to reconsider the finding in this case in second appeal it must be satisfied - -(1) that there is substantial defect or error in the procedure and (2) that the error or defect is such as may possibly have produced error or defect in the decision of the case upon the merits. I cannot agree with the contention of the learned Counsel for the appellant that merely for the reason that the case rests upon the credibility of the witnesses, the lower appellate Court ought not to interfere with the decision of the trial Court which had as opportunity of having the witnesses before it, unless good reasons are found for the interference. The weight of reasons good indifferent or bed unless perverse is purely a matter of appreciation of evidence within the exclusive competence of the final Court of fact. But it is quite a different matter if relevant and material aspects which had weighed with the trial Court are ignored by the appellate Court, for then it could be said that it has failed to decide on evidence; when important parts of the record are ignored, the decision cannot properly be said to be on the record. If the material ignored are substantial and might have been responsible for the conclusion of the trial court, when there is a reversal of the judgment in appeal ignoring the same, it may quite properly be said that there has been a substantial defect or error in procedure which may possibly have produced error or defect in the decision of the ease on the merits.

(2.) I think, in this context, it will be convenient to review briefly the position and power of the first appellate Court in this country. Under the Code the first appellate court is a court of fact as well as of law and it is the duty of the appellate court to make up its own mind on the question of fact and law involved in the case, of course not disregarding the judgment appealed from, giving weight to that judgment in cases where the credibility of witnesses comes into question. The appellate court has the fullest freedom to draw its own inference from the facts proved or admitted and to decide accordingly. In Montgomaria and Co. Ltd v/s. Wallace James, 1904 A.C. 73 H.L. Earl of Halsbury, L.C. says:

(3.) But this does not mean that the appellate court cannot examine the truthfulness of the evidence. The rule enunciated by the Lord Chancellor has to be observed with caution. In Sarju Persad v/s. Jwaleshwari : A.I.R. 1951 S.C. 120 the Supreme court observes: - -