BANDO SUBRAO JAMNIS Vs. JAMBU TAVNAPPA ADAKE

JUDGEMENT

(1.) The suit was brought by the respondent, as plaintiff, in the Court of the First Class Subordinate Judge at Belgaum, to recover from the defendant a certain sum with interest on the strength of a promissory note, alleged to have been executed on the 29 of March 1904, at Chikodi. The defendant pleaded in answer to the claim that in the first place he was an agriculturist; that though he had executed the note in suit, yet the consideration stated in it was not true, but that the note had been passed nominally, merely with a view to induce the plaintiff to stand security to Government for the performance by the defendant of certain contracts which he had undertaken.

(2.) The Subordinate Judge found that the defendant was an agriculturist and that the plaintiff's case as to the consideration was true. So a decree was passed in the plaintiff's favour. The defendant appeals.

(3.) It is urged before us that the onus of proof lay on the plaintiff in spite of the admission by the defendant of the execution of the note, because the case was one which had to be tried, and was tried, under the Dekkhan Agriculturists Relief Act. Now, in one sense no doubt that is true. But it is for the Court to say whether it ought to take the admission in the note as to the consideration, as correct, and call upon the other side to rebut the presumption. The lower Court here has deemed it proper to take into consideration all the circumstances of the case. As to the question of onus of proof, any argument founded upon it would have greater force in an original trial, where the question is which party is to begin. But where the trial has ended, and where the plaintiff has led evidence on his own behalf, and undertaken the burden on his own shoulders in the first instance, the contention that the onus of proof was wrongly thrown loses all its force in an appeal, because an appellate Court has to see whether, having regard to the evidence adduced by both parties, the lower Court's conclusion is shown to its satisfaction by the appellant to be erroneous or not. I point out that because it is often forgotten that the duty of an appellate Court is different from the duty which is imposed on a Court of original trial. In an appeal the appellate Court should not reverse the decree unless it is clearly shown to be erroneous. That is a long standing rule of practice, both here and in the English Courts. The question of onus becomes important and material in appeal only where the evidence is evenly balanced and conflicting; where that is the case, that party must fail, on whom the onus lay in the first instance.