KESHULAL Vs. RAM DAYAL

JUDGEMENT

(1.) THIS second appeal arises out of a suit instituted by the plaintiff Ram Dayal, who is the son of Bhanwarlal, the first plaintiff in the other suit. He claimed damages against the defendant Keshulal and his son Haraklal on the ground that the defendants had broken off the betrothal which took place with the daughter of Keshulal, and that both the defendants had set afloat a baseless rumour, and informed his father that the plaintiff was suffering from Tuberculosis and would die within a year or two. By this act of the defendants it was said the plaintiff had been lowered in the estimation of his community, lost in reputation and health, and suffered mental and physical injury. The allegations were of course denied by the defendant. The facts in this case are common as already stated in our earlier judgment delivered in First Appeal No. 46 of 1955. Here the trial Court in a very well reasoned judgment dismissed the suit of the plaintiff, but on appeal the decree has been reversed by the learned District Judge, Shri D. C. Sharma, by his judgment dated 17th October, 1956. We would be obviously precluded from interfering with the decision of the appellate Court where it proceeds upon an appreciation of evidence, and the finding recorded is one of fact; but in this case we have to remember that the judgment is one of reversal and that two important principles have been ignored by the lower appellate Court while reversing the decree of the trial Court. The first principle is that where the judgment of the trial Court is based upon an appreciation of oral evidence in the case, the appellate Court ordinarily ought not to interfere with the trial Court's appraisal of the evidence, except on a point of principle, where the judgment is so manifestly erroneous and against the weight of evidence that the appellate Court cannot but set aside the judgment. The reason is that the trial Court had the advantage of watching the demeanour of the witnesses who appeared before it and testing their veracity, which advantage is not available to the Court of appeal. The other principle which has to be borne in mind by the lower appellate Court is that if the trial Court in coming to its finding has given certain reasons which are vital and clearly emerge on the evidence on record justifying his finding, it is the duty of the lower appellate Court to consider those reasons before reversing that finding. If the lower appellate Court proceeds to reverse the findings of the trial Court without paying attention to those material and vital aspects of the case, which had to be considered in determining the points at issue, the decision of the lower appelate Court cannot be sustained in second appeal. Such a decision is not in accordance with law. We feel that the decision of the lower appellate Court in this case is vitiated on both these grounds. One of the essential factors which was considered by the trial Court in testing the veracity of the witnesses was the recital in the notice Ex. la which was given by the plaintiff to the defendant. In regard to this notice the trial Court held as follows "it is very significant to note that in the notice Ex. 1a which was given by the plaintiff to the defendants it is averred that Haraklal had met Shri Bhanwarlal on 18-11-52 and informed him that the defendant Keshulal did not went to keep up the betrothal but is is not averred that Haraklal had uttered the defamatory words stated in the present issue before Shri Bhanwarlal. On the contary, it is vaguley averred in it vki vksj vkids ym+ds gjdyky dh rjq ls gekjs eofddy ds ym+ds ds fy;s ;g xyr vqok,a mm+kbz tk jgh gs fd mldh tue i=h esa mez de gs vksj og fdlh Hka;dj chekjh ls eqcfryk gsa THIS averment shows that the allegation against the defendants upto the date of this notice, namely, 4-12-1952, was about getting rumours regarding the plaintiff's short life and his being involved in some serious desase circulated by them. That is why, about the talk which Shri Haraklal had with the plaintiff'sfather on 18-11-52, it is mentioned in the notice (Ex. Z. 1) gky gh esa rkjh[k 18-12-52 dks vkidk cm+k ym+dk gjdykyth gekjs eofddy ls vkdj feyk mlus ;g dgk fd vki lxkbz ugh j[kuk pkgrs gekjs eofddy us tokc fn;k fd rqegkjs okfyn ds'kqykyth ftugksus lxkbz dh gs mudks Hkst nsuka These averments contained in the notice would make it abundantly clear that the defendant Haraklal did not utter the defamatory words cited in para (2) of the plaint at the time when he met Shri Bhanwarlal and Shri Akshey Singh at the shop of Bhanwarlal. "

(2.) THE learned District Judge on appeal has completely ignored this vital aspect of the matter. Nor has the Court below given any satisfactory reason to show that the appraisal of the evidence by the trial Court was manifestly erroneous and unjust. We, therefore, think that the judgment of the Court below is not in accordance with law. THE question then arises whether we should in the circumstances remand the case or decide the matter ourselves. We think it unnecessary to adopt the former procedure. For the sake of convenience the two cases were placed for hearing together, because the facts were common, and having examined the evidence ourselves we entirely agree with the findings of the trial Court on the points involved, and we think that the learned Judge below was in error in interfering with those findings. It is unnecessary in this case to reproduce the evidence since most of the evidence is also common, and we have already recorded our findings in the earlier case. 2. We accordingly allow this appeal also, and set aside the judgment and decree of the lower Court and restore that of the trial Court, dismissing the suit of the plaintiff with costs throughout. 3. A copy of our judgment in First Appeal No. 46 of 1955 may be placed on the record of this appeal. .