Lakshmanan Chettiar vs Periakaruppa Thevar and others

Natesan, J.—The plaintiff has preferred this second appeal from the decision in appeal of the learned District Judge of Madurai dismissing the plaintiff''s application for the passing of a final decree in a mortgage suit and setting aside the final decree granted by the trial court. The learned District Judge would hold that the application for final decree was barred by limitation, the document relied on as acknowledgment being an ante-dated one. The suit the mortgage was filed on 19th July 1955 and a preliminary decree was passed on 7th March 1956 granting three months time for payment of the decree amount. The application for final decree, the dismissal of which on appeal is now in question, was filed on 7th March 1961, the plaintiff praying for a decree for sale of the secured property for recovery of the sum of Rs. 9462-11-3 due in terms of the preliminary decree, giving credit for a sum of Rs. 50 stated to have been paid by the judgment debtor. The application for final decree in the normal course should have been filed on or before 7th June 1959, and the plaintiff sought to get round the bar of limitation by the averment that the judgment debtor, the first defendant, on 16th October 1958 acknowledged the decree, making a part payment of Rs. 50. Ex. A. 1 bearing date 16th October 1958 is the acknowledgment relied upon. The document, referring to the mortgage suit and the decree therein, purports to record a payment of Rs. 50 towards the decree amount. It is signed by the first defendant on a ten naya paise revenue stamp. The scribe of the document is Govindaswami Naidu who also shows himself as an attestor. Ramanatha Chettiar is another attestor and both have come and given evidence. It is not disputed that, if Ex. A. 1 is a genuine document executed by the first defendant on the date it bears, Ex. A. 1 would save the application from being barred by limitation. The substantial defence to the application for final decree from the defendants was that there was no payment of Rs. 50 under Ex. A. 1 by the first defendant on behalf of himself and the other members of the family and that the document Ex. A. 1 was a forged and fabricated one. In any event, it was said that it was an ante-dated one he only issue that was raised before the trial court was the bar of limitation; and, besides examining the attestor and scribe of the document, the first defendant examined himself as R.W. 3. On the side of the plaintiff, the plaintiff was the sole witness. The learned Subordinate Judge was of the view that no weight could be attached to the oral evidence of the respondents'' witnesses and that Ex. A. 1 was a true document executed on the date which it bore. A final decree naturally followed. The lower appellate court on its consideration of the evidence would hold that Ex. A. 1 was not executed on the date it bore and that no amount was paid here under. In the result, it held that the preliminary decree had become barred by limitation. It is apparent from the above-mentioned facts that the sole and substantial question for consideration the case was whether Ex. A. 1 is an ante-dated document brought about after the expiry of the period of limitation. The question whether a document is ante-dated or not is clearly one of fact and on this the courts below have differed. There can be no doubt that merely because the courts below have differed and the judgment on appeal is one of reversal, it does not give this court jurisdiction in second appeal to interfere with the findings of fact and this is substantially the contention of the respondents before me. Learned Counsel for the appellant submits that though apparently there Ss reasoned finding of fact in the appellate judgment, the learned District Judge has ignored material evidence and relied on perverse probabilities and misplaced the burden. It is submitted that this was a case where the truthfulness of the out evidence of the witnesses was in question and the learned District Judge has failed to appreciate the proper approach for an appellate Court in such a case. It may be said that the first submission is perilously on requiring the second appellate court to examine the appreciation of evidence made by the lower appellate court. Respondents'' Counsel would submit, that, even if the appreciation of the evidence made by the lower appellate Court is patently erroneous and the consequential inference of fact grossly erroneous, the second appellate Court cannot re-examine the finding. But there can be no doubt that under S. 100(1)(c) C.P. Code, this Court in second appeal has jurisdiction to interfere with conclusions of the lower appellate court, if there is a substantial error or defect In the procedure provided by the Code or by any other law for the time being in force which may possibly have produced error or defect in the decision of the case upon the merit. For this Court to reconsider the finding in this case in second appeal it must be satisfied--(1) that there is substantial defect or error in the procedure and (2) that the error or defect is such as may possibly have produced error or defect in the decision of the case upon the merits. I cannot agree with the contention of the learned Counsel for the appellant that merely for the reason that the case rests upon the credibility of the witnesses, the lower appellate Court ought not to interfere with the decision of the trial Court which had as opportunity of having the witnesses before it, unless good reasons are found for the interference. The weight of reasons good indifferent or bed unless perverse is purely a matter of appreciation of evidence within the exclusive competence of the final Court of fact. But it is quite a different matter if relevant and material aspects which had weighed with the trial Court are ignored by the appellate Court, for then it could be said that it has failed to decide on evidence; when important parts of the record are ignored, the decision cannot properly be said to be on the record. If the material ignored are substantial and might have been responsible for the conclusion of the trial court, when there is a reversal of the judgment in appeal ignoring the same, it may quite properly be said that there has been a substantial defect or error in procedure which may possibly have produced error or defect in the decision of the ease on the merits.

I think, in this context, it will be convenient to review briefly the position and power of the first appellate Court in this country. Under the Code the first appellate court is a court of fact as well as of law and it is the duty of the appellate court to make up its own mind on the question of fact and law involved in the case, of course not disregarding the judgment appealed from, giving weight to that judgment in cases where the credibility of witnesses comes into question. The appellate court has the fullest freedom to draw its own inference from the facts proved or admitted and to decide accordingly. In Montgomaria and Co. Ltd v. Wallace James 1904 A.C. 73 H.L. Earl of Halsbury, L.C. says:

But where no question arises as to truth-fullness, and where the question is as to the drawn from truthful evidence, then the original tribunal is in no better position to decide than the judges of an appellate court.

But this does not mean that the appellate court cannot examine the truthfulness of the evidence. The rule enunciated by the Lord Chancellor has to be observed with caution. In Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, the Supreme court observes:--

The rule is--and it is nothing more than a rule of practice that when there is conflict of oral evidence of the parties on any matter in issue, and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge''s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact......" The duty of the appellate court in such cases is to see whether the evidence taken as a whole can reasonably justify the conclusion which the trial court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the court outweighs such finding.

In Radha Prasad Singh v. Gajadhar Singh AIR 1960 S.C. 116 the power and duty of the appellate court is summed up thus at page 118:

The position in law, in our opinion, is that when an appeal lies on facts it is the right and duty of the Appeal court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial judge''s conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour our of the witness in court. But, this does not mean that merely became an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the appeal court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial judge is wrong, the appeal court should have no hesitation in reversing the findings of the trial Judge on such questions.

As expressed by Lord Thankerton in Walt (or Thomas v. Thomas 1947 A.O. 484 quoted in Radha Prasad Singh v. Gajadhar Singh AIR 1960 S.O. 115 (already referred to) "the appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court". Manifestly the value and importance of having seen and heard the witnesses will vary according to the class of cases, the nature and type of the witnesses, and, it may be, the individual case in question. The approach may have to differ from case to case. In certain circumstances, the fact that the Judge aw and heard the witnesses may place him in a better position than the court of appeal. In another set of circumstances that may not be material. In a general way, when a matter comes up before an appellate court which may entertain the appeal both on questions of fact and law, it has to bear in mind that what comes up before it for consideration is the correctness and propriety of the judgment under appeal, in relation to the record. The appellate Court in such circumstances, it may be said, has not only the record of the case before it, but also the view of the trial Judge on questions of fact. There is an additional factor, apart from the primary record of the case which the appellate court has to consider, when forming its independent opinion on the evidence. But an appellate court cannot rest content with the observation that the trial court''s view was warranted by the evidence on record. It has a duty to form express and decide on its own view of the evidence, even when it confirms the decision of the trial court. That is the purpose of the appeal. When the appellate court has applied its mind to the case and proceeded to the determination of the facts, broadly speaking, the second appellate court cannot re-examine the evidence. Even the correctness of the approach, is often dependent on facts. Inference of fact are beyond the pale of scrutiny in second appeal and to say that the appellate court has not come to grips with the facts of the case may be only saying that there has been no proper appreciation of the evidence.

Learned counsel for the appellant attacks the judgment before me primarily on the ground, that the appellate court has failed to observe the well settled basic principles it has to follow in the matter of this kind. It is said that, while the appellant in the second appeal may be out of court if the lower appellate court had examined all the facts and material which had weighed with the trial Judge and come to its decision, in this case there has been no perception by the appellate court of all the material primary facts and probabilities and the presumption which might have influenced the trial Court. An evaluation of the evidence without a perception of all the facts, it is submitted, vitiates the findings of the appellate Court Counsel would urge that this is not a ease where this court in second appeal could say that the broad features of the evidence, by and large, support the conclusion of the lower appellate courts for a view that there could not have been an error in the decision of the case upon the merits by the omissions and non-perception of evidence referred to.

Having regard to the nature of arguments addressed it has become necessary to briefly examine the points urged for the appellants on the merits. First, learned Counsel submit that it does not appear from the judgment of the appellate court that the learned Judge has perused the evidence of the witnesses on record. Learned Counsel for the appellant submits that taking up the evidence of the first defendant himself as R.W. 3, the learned Subordinate Judge notes that while he stated in cross-examination that he did not know to read Tamil but can only sign, he was reading Ex. A-1 This note is seen on the record of the evidence Learned Counsel points out that the attestor R.W. 1 would state that when the plaintiff came to him to secure a receipt from the first defendant, toe decree being barred, he recommended remission on behalf of the first defendant. He deposed that the first defendant offered to pay the remitted amount in one or two years and that the receipt Ex. A-1 was brought about in order to acknowledge the decree debt but that is not the version of the first defendant. The first defendant as R.W. 3 while admitting the presence of the plaintiff and R.W. 1 and 2 when Ex. A-1 was signed by him, would state that he did not know that Ex. A-1 related to the decree and that he did not know that Ex. A-1 was executed in favour of the plaintiff. In his counter affidavit he has stated that Ex. A-1 was forgery and a fabrication besides being ante-dated. Here in chief-examination itself he admitted that signed Ex. A-1; only he would state that he signed it two years previously. Of course he says that he did not pay Rs. 50 to P.W. 1. That is the version of the witnesses who would also say that Ex. A-1 was executed in Adi 1960. The evidence of R.W. 2, the scribe is that the plaintiff wanted him to write the date as under Ex. A-1 and that he gave the date as mentioned by P.W. 1. He would state that all of them, that is himself and R.W. 1 made first defendant agree to the date as found in Ex. A-1. It is submitted for the appellant that the violent contradictions in the version between the witnesses for the defendants and the denial by the first defendant of the very contents of Ex. A-1 have been wholly ignored by the lower appellate court when examining the probabilities and considering the credibility of these witnesses. Learned counsel proceeds to submit a reference to the evidence of the plaintiff would show that the case of ante-dating was not even put to the plaintiff when he was in the witness box it is submitted that the defense case appears to have been that the amount of Rs. 60 was not paid as shown in the receipt, obviously in the erroneous view that the non-payment would affect the question of limitation. The only answer elicited from the plaintiff which has any bearing on the question of ante-dating is the following;

It is not correct to say that no amount was paid by D-1 after date of Ex. A-1 and D-1 simply signed in Ex. A-1.

Learned counsel submits that a perusal of Ex. A-1 shows that it does not specifically say that the cash was paid on that day and evidently this was taken advantage of for the defendants to build an argument that no money was paid the date of Ex. A-1. It is said that the entire case of the defendants was not a question of ante-dating, but a question of non payment of the amount under Ex. A-1 at the time of the execution or after may be in the erroneous view that would be sufficient for the defence. This aspect of the case pressed before me, in way it may be said, finds support from the observations of the learned Subordinate Judge in his judgment to the following effect:--

The only contention is that there was no payment of Rs. 50 under Ex. A-1 by the first defendant on behalf of himself and on behalf of the other members of the family and that therefore the final decree application was barred by limitation.

Learned counsel submit that that is the case that must have been principally submitted in the trial court, though in the defence a case has also been put forward that the document has been ante-dated.

Counsel for the appellant then refers me to the decision of the Judicial Committee in Mina Kumzri Bibi v. Bijoy Singh Duduria 44 Cal. 662 wherein there is the remark:--

It is a general, though not a conclusive, presumption that a document was made on the day of the date it bears, so that foe what it Is worth the plaintiff starts with that in her favour...

It is submitted that this presumption against ante-dating has not been borne in mind by the learned District Judge when he reversed the decision of the trial court.

Learned counsel also attacks the probabilities relied upon by the learned District Judge as wholly unrelated to the circumstances. It is submitted that nothing has been suggested as to why the plaintiff, a Nattukottai Chettiar having money lending business should have allowed the decree to get barred by limitation. It is argued that, if the case, of remission put forward by the defence witnesses is true, there was no reason why the amount remitted was not specified in Ex. A-1 itself. That would have been the prudent and normal course that amounts remitted being shown as paid. The learned District Judge it is said may be justified in his conclusion that a sum Rs. 50 was not actually paid for the acknowledgment. But it is submitted that this aspect of the matter far from giving any room for an inference of ante-dating psobabilised that the acknowledgment was taken before there was any bar of limitation without any money being paid as quite often happens. It is not the payment that is relied upon as an acknowledgment is the actual term of the document referring to the subsistence of the decree. Learned counsel would argue that having taken an acknowledgment the decree being a preliminary decree, there was no purpose to be gained by the decree holder in forthwith rushing to the court and having satisfaction for the sum of Rs. 50 recorded. It is the observation of this nature, it is submitted that is made much of by the District Judge. It is quite apparent on a perusal of the judgment of the lower appellate court, notwithstanding the fact that it appears to be more elaborate than that of the Subordinate Judge at the trial the there has been no perception of all the material facts of the case to shut out consideration of the case in second appeal in the view that this is a case of mere evaluation of evidence and probabilities. In view of the order I propose to pass in the matter, I have not addressed myself in greater detail to the arguments put forward on behalf of the appellant, nor considered the case on the merits for the defendants. I may state that for the defence, the reasoning of the learned District Judge in his judgment are primarily relied upon. It may be that not with sanding consideration of the various features of the case now placed before me by the learned counsel for the appellant, and a fresh examination of the entire record an appellate court may still come to the conclusion that the receipt is ante-dated. But that is not the question I am at now. The question is whether the errors in procedure and approach to the case, and the failure to bear in mind the presumption against ante-dating might have vitiated the finding. I cannot say that the features of the case brought before me for the appellant are so unsubstantial that I should brush them aside the observation that on the broad facts of the case the judgment of the lower appellate court could be sustained and the matter does not deserve consideration in second appeal. I think, that a case has been made out for setting aside the decision of the learned District Judge and for a re-assessment or revaluation of the evidence on record and the probabilities of the case. In the Interests of the parties, it is better that the appeal is reconsidered by the lower appellate court itself.

In the circumstances, the decree and judgment of the lower appellate court are set aside and the ease is remanded back to the lower appellate Court for fresh disposal on the merits. The lower appellate court will dispose of the appeal uninhibited by the emphasis that might be found here and there in the statement of the case put forward on behalf of the appellant. The lower appellate court will examine the facts of the case independently in the light of the observations herein contained as to the powers and duties of an appellate court. The second appeal is allowed accordingly and the case remitted back the lower appellate court for fresh disposal parties will bear their respective costs in the second appeal. The court fee paid on the memorandum of second appeal will be refunded. Leave refused.