ISAN CHANDRA SING Vs. HARAN SIRDAR AND OTHERS

JUDGEMENT

(1.) The first point upon which the Judge of the Small Cause Court asks the opinion of this Court is, whether in a case in which a judgment of a Small Cause Court in the Mofussil is called in question by one of the parties on a point of law, such as that damages have been assessed on a wrong principle, is it necessary for the party aggrieved to apply for a new trial, or can a motion be received to alter or reduce the amount of the judgment It appears to me that a motion cannot be received to alter or reduce the amount of the judgment, and that it is necessary for the party who calls the judgment in question to apply for a new trial within the period allowed by the 21st section of Act XI of 1865. But upon granting a new trial, it is not necessary for the Judge to re-open the whole case and to retry it upon questions of fact which have been determined and are not disputed. It is competent for him to grant a new trial and lay down any issue or issues of law or of fact which he may think necessary with reference to the grounds upon which the judgment is impeached. If the judgment is called into question upon a point of law, such as that damages have been assessed on a wrong principle, and the facts found are not disputed, the Judge may grant a new trial as to what amount of damages were sustained; and in determining that question he may alter his opinion as to the principle on which damages ought to be assessed and upon the new trial assess them upon the proper principle.

(2.) The second question does not state clearly and concisely the point of law upon which the Judge asks the opinion of this Court. The Court is left to find out what the point of law is from the statement of the facts. As far as I can ascertain the point of law upon which the Judge wishes to be advised, it is this:--Whether a statement made by one of the parties to the suit and put in evidence must be taken and believed in its entirety, or whether the Court having the whole statement before it, can according to law believe one part of the statement and disbelieve another part. If that is the question of law, I should answer it by observing that a man's own statement is not evidence for him; though in certain cases it may be used as corroborative evidence. If one party uses the statement of another against him, the whole of the statement must be put in evidence, but the Judge is not bound to believe the whole of it. For instance he may, though he is not bound to do so, believe that part of the statement which makes against the interest of the person who makes it without believing all that part of it which makes in his favor.

(3.) The statement of the Judge on this point is this:-- "The plaintiff's claim was for a certain balance remaining due, after crediting various sums paid to defendant. The latter averred the amount lent him to have been less than what plaintiff stated; he (the defendant) did not prove re-payments at all. I found the amount lent to have been considerably less than that stated in the plaint and in plaintiff's books, and decreed the amount proved to have been lent, without deducting the sums with which defendant was credited in plaintiff's books. Defendant contends that, as plaintiff has debited himself with these sums, his own books must be held conclusive evidence that he has received them.