1. The first point urged in support of this appeal is that the learned Judge has reversed the judgment of the first Court, without giving an opportunity to the present appellant of adducing the evidence, which he did not adduce in that Court under the impression that the Subordinate Judge was satisfied with the evidence of the witnesses whom the appellant had already examined.
2. Now, to that argument the answer is given by the decision of this Court in Gulam v. Haji Badrudin ILR (1888) 13 Bom.235.
3. This case is even stronger than that, because, in this case it is not the Court which stopped the present appellant from examining more witnesses than he had already examined, but it is the pleader of the appellant in the Court of first instance who thought that, having regard to the expression of opinion by the Subordinate Judge in the midst of the case, it was unnecessary for him to examine any more witnesses. But pleaders ought to remember that the Subordinate Judge's is not the final Court and that there are higher Courts of appeal that might take a view different from that of the Subordinate Judge. Therefore, pleaders and parties take the whole responsibility on their own shoulders, when they dispense with evidence; and even supposing that the party or the pleader was misled in the Court of first instance by the expression of opinion of the Judge of that Court in the midst of the case, it was the duty of the appellant's pleader to have brought that fact to the notice of the District Judge, that the error, if any, might be rectified. Therefore, we here, sitting in second appeal as a Court having only to correct errors of law of the Court below, cannot say that the District Judge has erred in law in not giving the appellant an opportunity to examine the witnesses, whose evidence was dispensed with because the appellant's pleader in the Court of first instance dispensed with them.
4. We are called upon by the appellant's counsel not to correct an error of law committed by the lower Court but to correct an error committed by the appellant's own pleader in the Court of first instance.
5. Then the next argument urged by the learned Counsel, passing on to the merits, was that the learned District Judge had thrown the onus of proof on the appellant, when by the light of the evidence, which the appellant had already adduced, that onus had been discharged. But the question of onus is not necessarily and in all cases one of law. How much or what evidence is sufficient to discharge the onus that lies upon a party, is a question which must depend upon the weight to be attached to the evidence already adduced. Therefore, the learned District Judge was within his discretion on that point.
6. And as to the other arguments urged, they are all arguments on questions of fact and we cannot interfere with the learned Judge's view, because he has found upon the evidence, differing from the Subordinate Judge, that the plaintiff, that is, the present appellant, has not proved his case.
7. It is true the learned District Judge has not given sufficient weight to the evidence adduced by the plaintiff and sufficient regard to the view which the Subordinate Judge had taken of the case after a patient investigation of the facts. If we had to deal with the appeal as a first appeal, we might not have come to the same conclusion at which the District Judge has arrived. But our jurisdiction in second appeals extends only to errors of law committed by the lower Court, and we cannot say that there is any error in law in the District Judge's judgment to warrant our interference with his findings of fact.
8. For these reasons the decree is confirmed with costs.