E W EVANS Vs. STELLA BENJAMIN

JUDGEMENT

(1.) This rule is directed against a judgment & decree passed by a F. B. of the Small Causes Ct. whereby the Bench decreed a suit for damages brought by the opposite party against the petnr. on account of a certain defect said to have been discovered in an Electrolux purchased by the former from the latter. The opposite party was attracted by an advertisement, appearing in the Statesman of 17-4-1946. By that advertisement the petnr. invited purchasers for an "Electrolux gas operated, Model L.22, 3 1/2 cubit ft. Inspection by appointment. Phone P. K. 2583." On the same day the opposite party went to the petnr's. house with her brother & a person who is an employee of the Oriental Gas Co. Ltd., had a look at the machine & made the purchase for Rs. 850. Subsequently, she by a letter, sent through her Solicitor, on 9-5-1946 complained to the deft. that she had made a false representation as regards the serviceable character of the machine & that it was in a defective condition. Some correspondence followed in the course of which the opposite party asked the petnr. to take the machine back & to refund the purchase money. That offer was not accepted & ultimately the suit out of which this rule arises was brought.

(2.) The trial in the first instance ended in a dismissal. The learned Judge of the 5th Bench found that as the opposite party had purchased the machine after examination of the same by an expert she was not entitled to recover any damages on account of any defect subsequently discovered in the machine. This decision was however set aside on an appln. made by the opposite party & a new trial granted. At the new trial, the F. B. held that there had been no examination by any expert inasmuch as Mr. Boswell who was said to be the expert who had examined the machine, was not an expert on refrigerators at all. On the other hand, the learned Judges found that no express warranty by the petnr. as regard the quality of the machine had been proved. The learned Judges have however decreed the suit in the view that a defect had in fact been proved & if it had been, the opposite party was entitled to rely upon the breach of an implied warranty as provided for in Section 59, Sale of Goods Act & sue for damages as she had done. In that view, the F. B. passed a decree for Rs. 430/-Rs. 400/- being awarded as damages & Rs. 30/-as costs of getting the machine sold by certain auctioneers I have omitted to mention that after the petnr. had refused to take the machine back, the opposite party caused the machine to be sold through Messrs Staynor & Co. & obtained a price of Rs. 400.

(3.) It is contended in support of the Rule, that the F. B. had no jurisdiction to go behind the findings of fact arrived at by the trial Judge. The argument was that the trial Judge had expressly found that there had been an expert examination of the machine & in view of that finding, it was not open to the F. B. to hold that no expert examination had taken place. I do not consider it necessary to go into the question as to the extent of the powers of a F. B. of the Small Causes Ct. at a new trial, for assuming that the powers are only revisional, the Bench certainly has jurisdiction to alter a finding if it was arrived at on a clear misunderstanding of the evidence. I do hot say that misappreciation of evidence would entitle a revisional Ct. to interfere with findings of fact, but a misunderstanding of evidence certainly will. I do not consider that there is any substance in the first point.