JOHN JEFFREY MADAN Vs. HARISH KUMAR ARORA

JUDGEMENT

(1.) A suit for eviction of tenant having been de- creed against the tenant ex parte, the tenant filed an application for setting aside the same under the provisions of Order 9 Rule 13 of the Code of Civil Procedure. But the same having been dismissed on merits, the tenant-defendant has filed this appeal.

(2.) A Court of first appeal has no doubt all the powers of a trial Court as provided in section 107 of the Code. But, to borrow from Shakespeare, while it may be good to have giant's power, it is not always good to use the same as a giant and therefore even a first appeal is not always to be treated as a full-fledged second round of trial subjecting the evidence and materials on record afresh to the strictest possible scrutiny.

(3.) As pointed out by the Privy Council in Khoo sit Hoh v. Lim Thean Tong (1912 Appeal Cases 323), when an appellate Court is to express opinion on the credibility of conflicting witnesses whom it has not seen or heard or questioned, it must of necessity be greatly influenced by the opinion of the trial Judge, who sees the demeanour of the witnesses and can estimate their intelligence, position and character in a way not available to the appellate Court. Of course, it may be that in deciding on evidence, the trial Court has clearly failed on some point to take proper account of particular circumstances, or given credence to testimony which turns out to be substantially inconsistent with itself, or with indisputable facts. But except in rare cases of that character, a Court of appeal shall hesitate long before it disturbs the findings of a trial Judge based on appreciation of evidence. These observations in Khoo sit Hoh (supra) have been fully endorsed by the Privy Council in the later decision in Sitalakshmi Ammal v. Venkata Subrahmanian (AIR 1930 Privy Council 170 at 171-172).