RAMSUNDAR SAHU Vs. SAKHI SAHOO

JUDGEMENT

(1.) This rule is directed against the judgment of the Small Cause Court Judge in an action on a promissory note. I was much impressed with the argument addressed to me by the learned advocate appearing on behalf of the defendant to the effect that although perhaps Section 25, Small Cause Courts Act, is wider in its application than Section 115, Civil P.C. in this case no question of jurisdiction arose, and at the most the Judge has committed an error of law. I have construed the section referred to on more than one occasion in my judgments, but there is considerable difficulty in its application. It is note-worthy that the section gives discretion in the High Court, but I apprehend that in every case in which a possible error of law has been made, the High Court would not call for the record and pass an order thereon. But I do not think there is really very much doubt about this case, because not only has the Judge in the Court below committed every possible error which was possible in the circumstances to commit, but the case must be described as a mistrial. The Judge appears to have confused the plaintiff with the mortgagor. At least he has not clearly defined in his mind the difference between the mortgagor and the plaintiff; the mortgagor in this case appears to have been called as the plaintiff's witness.

(2.) Now the short facts which presented themselves in this case were these. The plaintiff who did not appear in the witness-box claimed to have a promissory note in his favour for Us. 165. It would appear that this debt is supposed to have been incurred by the defendant for the purpose of paying to the mortgagor (who was called as a witness) certain rents, which he was to collect and pay over to the mortgagor in advance. Whether the amount was Rs. 165 or any other sum is for the purposes of this point immaterial. The only question that the Judge had to try was whether there had been a promissory note executed by the defendant for Rs. 165 and whether there was a consideration for that note. The Court below in the first instance makes the profound mistake in placing the onus upon the plaintiff to prove the passing of consideration. This is indicated in two passages made in the course of its judgment. Now it would appear, with what justification I am not prepared to say, that the defendant admitted the execution of the promissory note. The words used by the Judge are these: "The execution of the hand-note is practically not denied on behalf of the defence." Now the first matter the Judge had to make up his mind about was whether the execution of the hand-note had been admitted or not The law knows nothing about the word practically. If the defendant admitted the execution he did admit it; if he did not, he did not admit it: and, if he did not admit the execution of the hand-note it was necessary for the plaintiff to prove it. Now once assuming for the moment that the admission was made, the onus was entirely on the defendant to prove that no consideration had passed. The Judge allowed himself to get into a state of utter confusion by mixing up the rehan bond with the promissory note. It may be to some extent the plaintiff's own fault to call the mortgagor in order to establish the account on what has been described as the hisab; but it is quite clear that the rehan bond and the promissory note had no direct relation one with the other. The mere fact that by some arrangement between the mortgagor and the mortgagee the mortgagee was to pay a sum of money on account of rents to the mortgagor, has nothing to do with the matter. The only question for the Judge in the Court below to try was whether as I have already said, the hand-note was executed and whether there was consideration; and it must be observed in this connection that the mere fact that the plaintiff obtained a hand-note for a sum in excess of the money actually lent or borrowed does not show that there was no consideration: in other words, the mere fact (or assuming it to be so) that Rs. 46 odd only was borrowed while the hand-note was for Rs. 165 does not entitle the Judge in law to find that the defendant was liable for Rs. 46 only. Had this been a case of endorsement by some person connected with the original acceptor, the position in law would have been entirely different.

(3.) Now there is a second aspect of the case. The defendant appears to have contended in his written statement that the hand-note was obtained by fraud or something of that kind. The manner in which the Judge deals with it is by saying: The hand-note cannot be said to be for a consideration exceeding Rs. 46-2-3 admitted to be due. It seems, under the threat of withholding the rehan deed, hand-note was executed for Rs. 165.