MUHAMMAD AKHTAR Vs. CHAMRU MISTRY

JUDGEMENT

(1.) THE petitioner was the plaintiff in a Small Cause Court suit which he instituted against the opposite party for the recovery of the price of two trunks of Shisham tree which he alleged to have made over to the defendant (who is a carpenter) for making furniture and an advance of Rs. 10 on account of the wages. THE suit has been dismissed by the Court below and hence this petition. It appears that the main defence in the case was that the suit had been instituted by the plaintiff at the instance of his step-brother, Faridul Huq. It is stated in the affidavit which has been filed in this Court that the plaintiff in order to show that he was not on good terms with Farid, tendered in evidence two judgments, dated December 7, 1931, a September, 16, 1930, but both these documents were rejected by the learned Judge; and the learned Judge also rejected a notice which had been sent on April 16, 1936, by the plaintiff to the defendant previous to the institution of the suit. THE point urged now is that these documents had an important bearing on the case in view of the opposite party's allegation and that if the learned Judge had taken them in evidence, he might have arrived at a different conclusion. It has also been contended that if the learned Judge had not rejected these documents the plaintiff would have tendered some more recent judgments in evidence which would have borne out his case that he was on bad terms with his step-brother. THE allegations made in the affidavit have not been controverted by the opposite party; but I have not had the advantage of calling for an explanation from the learned Judge as to the statements made in the affidavit. THE revisional powers of this Court, even in a case decided under the Provincial Small Cause Courts Act, are very limited, and it is clearly provided in Section 167, Evidence Act, that the improper rejection of evidence shall not be ground itself for a new trial or reversal of any decision in any case, if it shall appear to the Court that if the rejected evidence had been received, it ought not to have varied the decision. Now, on reading the judgment of the Small Cause Court Judge, it appears that he proceeded on the assumption that the two brothers had been on bad terms; but he accepted the evidence of the witness for the defendant that at present good relations existed between them. THE judgments which were tendered in evidence were delivered in 1930 and 1931, respectively, and the present suit was instituted in 1936. THE learned Subordinate Judge has also dealt with the case on the footing that the plaintiff's allegations as to the existing hostility between him and his step- brother were correct, because after having referred to the evidence of the defence witness he states: At any rate, I am not satisfied that the plaintiff's claim is true. THE plaintiff has examined some witnesses but I have not been impressed by their testimony.

(2.) THE learned Judge had the advantage of hearing the evidence, and if he was not impressed by the evidence of the plaintiff's witness, he was justified in not basing any conclusion upon it. THE notice of April 16, 1936, has no important bearing upon the case. In my opinion, though another Court to which the facts of the case might have been open might have come to a different conclusion, yet there being no right of appeal in this case and the conclusion of the Court below not being necessarily perverse, the present application cannot succeed. I would, therefore, dismiss this application; but I would pass no order as to costs.