1. This is a second appeal from the decree passed by the Joint Judge of Ahmedabad reversing the decree of the Joint Subordinate Judge, at Ahmedabad, in Suit No. 463 of 1903 and awarding the claim of the respondent (plaintiff).
2. The plaintiff sued in the Court of first instance to recover Rs. 2,217 as being due upon a document executed by the appellant Bai Gulabbai on the 25th January 1902.
3. The defence of the appellant was, that no cash was paid on the document as stated in it, but that the real consideration for it was, that the plaintiff who was then assisting one Kevalpuri in a litigation between her and the said Kevalpuri, should not assist him or render him any service.
4. In the Court of first instance three issues were raised; one of which, the material one, was this :-
Is the bond in suit without consideration? Is its consideration unlawful?
5. The burden of proof that the bond was without consideration or that the consideration was unlawful no doubt in the first instance lay upon the defendant. Accordingly the defendant led evidence at the outset before the Subordinate Judge. In rebuttal of all that evidence the plaintiff did not himself go into the witness-box, but called certain witnesses. The Subordinate Judge came to the conclusion after a careful consideration of both the oral and documentary evidence and after noting the demeanour of the witnesses, examined before him for either party that the appellant's case was true; and that the consideration was not that stated in the bond but it was that the respondent should not assist Kevalpuri in the litigation which was then going on between the latter and the appellant. The Subordinate Judge rejected the claim of the respondent.
6. The respondent appealed. On that appeal the Joint Judge, dealing with the question whether the bond in suit was without consideration and whether its consideration was unlawful or not, has found that the transaction was a cash transaction as stated in the bond in suit and that the defendant's case is false. That is a finding of fact.
7. We are asked on second appeal to upset that finding of fact, upon the ground that the Joint Judge has in several respects mis-stated the evidence and that he has ignored material evidence in the case. Before we deal with the questions thus raised before us in second appeal, we must observe that where a Court of first instance has upon the evidence of witnesses examined before it come to a conclusion of fact, the Court of appeal ought not to disturb that finding unless it is satisfied that the lower Court had either omitted to consider material evidence or some cardinal fact or had given undue weight to some evidence or fact which is of little or no importance. That is a rule of practice. See Gray v. Turnball (1876) L.B.2 Sc. H.L. 53, where it was held that the Court of appeal ought to abide by the original decision on a question of fact where the evidence is nearly balanced, unless it be shown to be irresist-ably erroneous. Where however the legislature has constituted a particular tribunal the final Court of facts, this Court sitting in second appeal can only interfere under the provisions of Section 584 of the Code of Civil Procedure. (See the decision of the Privy Council in Durga Chowdhmni v. Jewahir Singh Chowdhri I L R (1890) Cal, 23. Exhibit 33, which, according to the appellant's case, has a material bearing on her defence, is, in the opinion of the learned Joint Judge, inadmissible in evidence under Section 92 of the Evidence Act, because it required registration as a document purporting to extinguish certain rights in immoveable property. But the appellant does not seek to rely upon Exhibit 33 for the purpose of creating or extinguishing any rights to immoveable property so as to invite the application of the sections of the Registration Act referred to by the learned Joint Judge. A document of which registration is compulsory under the Act may be used as evidence for any collateral purpose for any purpose other than that of creating or extinguishing a right to immoveable property. The defendant relied upon Exhibit 33 as showing that the consideration for the bond in suit was different from the consideration of cash payment alleged in the bond. In other words, her case is that the respondent never paid her the amount sued on and she seeks to prove it by the recitals in Exhibit 33. If Exhibit 33 was passed for the purpose of showing that the consideration stated in the bond in suit was not real but that the consideration was different, Section 92 has no application and it is admissible in evidence. Hukumchand v. Hiralal I L R (1876) 3 Bom. 159.
8. It is true that although the learned Joint Judge held Exhibit 33 to be inadmissible in evidence yet he has considered the evidence bearing on the question of its genuineness and found that it is a 'suspicious' document. That no doubt is a finding of fact and under ordinary circumstances we should have accepted it as a finding binding upon us in second appeal but the finding of the learned Judge that Exhibit 33 is a suspicious document appears to have been influenced by his view as to its admissibility. That his view of the inadmissibility of the document has influenced his appreciation of the evidence, is apparent from the fact that ho treats Exhibit 33 as a suspicious document, because, among other reasons, that document was not, whereas the bond upon which the suit was brought was, registered. Such a finding of fact is based upon an error of law as to an important document in the case. Again, that finding has been arrived at on the ground stated by the learned Joint Judge in his judgment that he does not 'believe the evidence for the defendant, both oral and documentary.' But it was not on that evidence alone that the defendant relied or was entitled to rely in support of her case. There was the undisputed fact, apparent upon the record, that whereas the defendant had affirmed on oath that the plaintiff had executed Exhibit 33 the plaintiff did not go into the witness-box and contradict the defendant's sworn testimony ; that he produced no accounts although he had on a previous occasion admitted that he had accounts ; and that there was no cross-examination of the defendant's witnesses so far as they swore that the plaintiff had executed Exhibit 33. Whether on a consideration of these circumstances the defendant's case must be held to be proved or not, it is not our province to say. That is for the Court which has to appreciate the evidence. But all we are concerned to point out is that the learned Judge has decided the appeal under the erroneous impression that beyond the oral and documentary evidence pro- duced by her the defendant had no evidence to support her case. The omission to consider this evidence coupled with the erro. neous supposition that the defendant's case solely rested on the evidence of the oral and documentary evidence adduced by her, is an error or defect in procedure which amounts to a substantial error of law affecting the merits of the case. Further, it is admitted that Bhaishankar is plaintiff's gumasta and that he managed the present suit for the plaintiff. It is also admitted and the record shows that he was cited as a witness both by the plaintiff and the defendant. But the defendant examined him as her witness. He swore that the plaintiff had executed Exhibit 33 ; and there was no attempt made for the plaintiff to cross-examine his evidence on that point. The Subordinate Judge, who heard his evidence, found that ho 'was very reluctant in giving evidence in favour of the defendant and was inclined to favour the plaintff.'
9. Of course it was open to the learned Joint Judge to disbelieve the witness in the face of these facts. But the ground he gives for disbelieving him is that his evidence is favourable to the defendant. To disbelieve a witness because his evidence tells in favour of the party who has called and examined him and against the adverse party is, in the language of the Privy Council in Rajah Run Bahadoor Singh v. Musaumut Lachoo Koer (1884) L.R. 12 IndAp 83, ' to beg the question in dispute.' That, we think, is also an error of law.
10. We think, then, that there are three substantial errors of law in the judgment of the learned Joint Judge which vitiate his finding of fact. We must, therefore, send the case back to him for a re-hearing of the appeal upon the following points which arise for determination:-
(1) Did the plaintiff execute the document, Exhibit 331
(2) If the first point is found in the affirmative, has the plaintiff performed his part of that agreement?
11. The findings on these points must be on the evidence already on the record.
12. No fresh evidence shall be allowed.
13. Findings to be returned within two months.