RAOJI BHAGU MORE Vs. RAGHUNATH VITHAL KOTHALE

JUDGEMENT

(1.) The plaintiff sued in the Court of the First Class Subordinate Judge at Sahara to recover a sum of Rs. 150 upon a promissory note, which he alleged was executed by the defendant on May 10, 1920. The defendant) denied the execution of the promissory note and the receipt of any money from the plaintiff. Evidence was taken before the First Class Subordinate Judge, and among other things the defendant was made to impress his thumb-mark upon a paper in the Subordinate Judge's Court. The Subordinate Judge came to the conclusion that the promissory note was at least suspicious and that no consideration had been proved In his judgment he discussed the oral evidence that had been given before him, and in regard to the question of the thumb-impression upon the promissory-note he remarked : It is not a very certain test. But leaving out the thumb impression on defendant's written statement and Vakalnt as being not very clear, the thumb impression on the summons and that specially taken in Court Exhibit 7 somewhat differ from that on the promissory-note marked A.

(2.) He dismissed the suit with costs. The suit was one that fell under the Dekkhan Agriculturists Relief Act, and, therefore, the plaintiff made an application to the District Judge for the exercise of his powers of revision under Section 53 of the Act. Among the grounds of appeal was one that the lower Court was wrong in holding that the promissory-note was not proved, and in holding that the consideration was not proved; also there was a specific ground that the Subordinate Judge was in error in holding that the thumb-impression of the defendant taken before the Court (Exhibit 7) somewhat differed from that on the promissory-note. It appears that, when the case was first taken up for arguments, the District Judge gave the applicant-plaintiff an opportunity of calling an expert witness from Poona in regard to the question whether the thumb-impression upon the promissory-note was shown to be the defendant s, as being identical with the thumb-impression that he had made in the Subordinate Judge's Court. The District Judge says that he allowed this because the thumb- impression on the promissory-note was exceptionally clear. The expert witness gave his positive opinion that the thumb-impression on the promissory-note was the defendant s, after comparing it with-the thumb-impression on Exhibit 7. The District Judge also says that he has no doubt that the expert's opinion was correct, as even to his eyes the two thumb-impressions seemed the same. Thereupon, he reversed the decree of the lower Court and allowed the claim in full with costs throughout.

(3.) The defendant has come to us in revision, and the main contention of Mr. Rao on his behalf is that the District Judge had no power to allow additional evidence to be taken in the revisional proceedings before him under Section 53 of the Dekkhan Agriculturists Relief Act. He contends that Section 74 of the Act shows that the provisions of the Civil Procedure Code do not apply to proceedings before a District Judge in revision, and he also relies upon the ruling in Babaji V/s. Babaji (1891) I.L.R. 15 Bom. 650 (an analogous case under Section 54) that the Special Judge had no jurisdiction to grant a review of a decree or order once made by him on the ground of the discovery of new evidence. He, however, rightly drew our attention also to the Full Bench decision in Raw sing V/s. Babu Kisansing (1893) I.L.R. 19 Bom. 116, f.b, where the Special Judge had granted a review of a previous decree that he had passed under Section 53 on the ground of a mistake that had led him to wrong conclusions upon the merits of the case. It was held by the Full Bench that in granting a re-hearing the Special Judge had exercised a reasonable discretion, with which the High Court could not interfere in its extraordinary jurisdiction. It also held that the Civil Procedure Cods was not applicable to proceedings before the Special Judge, and that the conduct of such proceedings rested within his discretion. In the judgment delivered by the Chief Justice, Sir Charles (I) Sargent, the case of Babaji V/s. Babaji was referred to, but he said that it was not necessary for him to express an opinion whether a re-hearing could be granted on the ground of new evidence. Fulton J. concurred with Sir Charles Sargent's judgment, but J., one of the Judges who decided the cane of Babaji V/s. Fawcett J. Babaji, stated that he adhered to that decision and considered it to be correct. In a subsequent case, Gurubasaya V/s. Chanmalappa (1894) I.L.R. 19 Bom. 286, Sargent C.J. and Fulton J. held that under Section 53 of the Dekkhan Agriculturists Relief Act, the Special Judge has a revisionary power in all cases where a failure of justice appears to have taken place; it is for him to decide whether a finding on a question of fact by a Subordinate Judge is of that; nature, and in doing ho he is entirely within his jurisdiction.