M NATARAJA MUDALIAR Vs. PONNU KANNAMMAL

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.