LAL MOHAN SAHA Vs. SHAIKH TAZIMADDIN

JUDGEMENT

(1.) This Rule was issued on the application of the plaintiff calling upon the defendant-opposite parties to show cause why the judgment and decree of the Small Cause Court Judge of Tipperah, dated the 25th January 1918, should not be set aside. The plaintiff sued to recover certain money on two bonds. He alleged that the bonds, though dated more than three years prior to the suit, were still alive and could be sued upon on the ground of certain part- payments which were endorsed and signed on the back of the bonds. The first defendant put in a written statement and joined issue. The second defendant did not contest the suit. As regards him, the suit was a non-contested one and, on the allegations in the plaint, the plaintiff was entitled to a judgment against him. The case came on before the learned Small Cause Court Judge, and apparently a week before the trial an application was made for the issue of fresh notices on some of the witnesses for the plaintiff. The learned Judge refused that application. As regards that, I see no reason to think that the learned Judge did not act properly. Such an application, if entertained, often becomes a fruitful source of delay, giving rise to many other long and protracted proceedings in the subordinate Courts. I think we ought not to interfere with the exercise of the discretion of the learned Judge of the Court below in a matter like this, unless we are of opinion that he was clearly wrong. But the matter does not rest there. The affidavit filed by the plaintiff in the present case states that the defendant No. 1 with a view to deny the part-payments and the endorsements adduced certain evidence. As against that the plaintiff says that he had eight witnesses present in Court, whom he wished to call in support of his, case but that the learned Judge after examining four by some means managed to stop the Pleader and the other four witnesses were excluded from the witness-box.

(2.) The other point is this: The plaintiff had evidence which went to corroborate or which, he alleged, went to corroborate the statement made by his witnesses as to the fact of these part- payments and that related to the books of account of the plaintiff regularly kept in the ordinary course of his business. It is said that by some means or other the learned Judge excluded those books of account from being given in evidence. It is quits clear that books of account, if they are in fact genuine--although it must not be taken that all books of account adduced in evidence in this country are genuine--are important pieces of evidence and, if it is proved that an entry made therein was made in the ordinary course of business, then such an entry is a most material piece of evidence to corroborate the statement of a witness that on a particular date a certain part-payment was made. Evidence like that cannot be shut out. The learned Judge came to the conclusion, merely on the credit of the four witnesses examined, that the case put forward by the plaintiff had not been proved. I think in this case we ought to set aside the judgment and decree of the learned Judge of the Court below and direct that as against the defendant No. 2, a judgment should be entered in favour of the plaintiff for the amount- claimed and costs. As against the defendant No. 1 the case should be remitted to the primary Court for the learned Judge there to re hear it after having permitted the plaintiff to adduce the evidence he wishes to adduce in support of the case he wants to make. The opposite party will also be entitled to adduce rebutting evidence. It will be convenient if the learned District Judge, in case he finds that it will not disturb the work of the Court, transfer the case to some other learned Subordinate Judge for re-trial. Costs of this Rule will abide the result of the re-hearing. We assess the hearing fee at one gold mohur. Walmsley, J.

(3.) I agree.