S.R. Das Gupta, C. J.
1. The appellants before us were the plaintiffs in the suit. The suit out of which this appeal arises was instituted by them to recover monies against the defendant on the allegation that they were sureties for the said defendant in respect of a hundi executed by the plaintiffs and the defendant in favour of a bank.
2. On 24-4-50 a liundi was executed by the plainfiffs, the defendant and one Yusuf for a sum of Rs. 2500/- in favour of Vijaya Bank. On 25-8-1950, the said hundi was renewed. On 24-10-50 there was a further renewal of the said hundi. A suit was thereafter filed by the bolder of the said hundi against the plaintiffs and the defendant. The said suit was decreed against the plaintiffs and the defendant
The Bank which was the decree-holder set off a sum of Rs. 504-14-0 which was deposited by the defendant in the said Bank and obtained the decree for the balance amount due on the hundi. This decree was put into execution and was paid off by the plaintiffs and satisfaction was entered. Thereafter they filed the present suit for recovery? of the said amount from the defendant who, it was alleged by them, was the principal debtor under the said transaction.
The plaintiffs' case was that they were sureties in respect of the said hundi and the defendant was the principal debtor. The defendant's case, on the other hand, was that he was a surety in those transactions and the plaintiffs were the principal debtors. The defendant also counter-claimed a sum of Rs. 504-14-0 which had been set off by the Bank.
3. The first Court found in favour of the plaintiffs and decreed the suit. The said Court dismissed the counter claim also which was made by the defendant. The lower appellate Court reversed the said decision of the trial Court and dismissed the suit of the plaintiffs and decreed the counter claim which was filed by the defendant. It is against this decision that the present second appeal has been filed.
4. Mr. T. Krishna Rao appearing on behalf of the appellants raised three contentions before us. In the first place, he urged that the lower appellate Court did not take into consideration a material document which was adduced in evidence in this case, being Ex. A-24. He then contended that the lower appellate Court completely misread Ex. A-5 which was also a vital document in the case. Lastly, he contended that the said Court misunderstood the effect of the admissions made by P.W. 1 in his evidence. I shall take up the first ground urged by Mr. T. Krishna Rao before us first.
5. In order to understand the said contention it would be necessary to refer to the terms of Ex. A-24. It is a letter written by the 2nd plaintiff to the Manager of the Vijaya Bank Ltd. In it, it is inter alia stated as follows:
'We are aware that A.C. Bava has applied for a loan of Rs. 2500/- on the indemnity of his property. In case that the said loan is passed by you we are agreeable to join the pronote to be executed as security for the said loan in your favour.'
Mr. T. Krishna Rao contended before us that this is a material document which should have been considered by the lower appellate Court The said document, according to him, shows that the plaintiffs were acting as sureties in the said loan transaction. In my opinion, there can be no doubt that the lower appellate Court did not take this document into consideration. We have been taken through the judgment of the lower appellate. Court but we find no reference to the same in the said judgment.
6. The learned advocate for the respondent no doubt tried to contend before us that the lower appellate Court impliedly referred to the said document. I am unable to accept that view. The said document has not been referred to by the lower appellate Court either directly or indirectly. I, therefore, hold that the lower appellate Court did not take into consideration the said document before it came to its conclusion in the appeal before it. The question, however, is whether we can interfere with the decision of the lower appellate Court on this ground.
7. It should be noted that the question as to whether the plaintiffs acted as sureties in the transaction is a pure question of fact There is a finding of the lower appellate Court on this question. Are we competent, sitting in second appeal, to interfere with the said finding on this ground Mr. T. Krishna Rao contended before us that if an important piece of evidence has not been taken into consideration by the lower appellate Court, then that amounts to a defect in procedure and the High Court can, in second appeal, interfere with the decision of the said Court.
In support of that contention he referred us to a large number of decisions, viz., G. Bapayya v. Ramakrishnayya, AIR 1938 Mad 568; Vedachala Chettiar v. Ameena Bi Ammal : AIR1944Mad121 ; Municipal Board, Benares v. Kandhya Lal : AIR1931All499 ; Gajindra Singh v. Chhajju, AIR 1932 Lah 54; Subodh Gopal v. Brojendra Kishore, : AIR1954Cal90 ; Hemraj Agarwalla v. Sovachand, AIR 1949 Cal 286 and Helava v. Sesigouda, AIR 1960 Mys 231. These decisions, in my opinion, clearly support Mr. T. Krishna Rao's contention. They establish that if the lower appellate Court does not take into consideration important evidence in the case and decides an appeal before it without taking the said piece of evidence into consideration, then the High Court in second appeal would be justified in interfering with the decision of the lower appellate Court.
8. In AIR 1938 Mad 568, their Lordships of the Madras High Court took the view that if an appellate Court, while reversing a well considered judgment of the trial Judge, fails to advert to, or in any way indicate that it has considered a most material piece of evidence which militates against its own view, the finding of such a Court cannot be said to be unassailable as a final finding of fact. In that case the question arose as to whether or not the plaintiff got possession of his share.
In dealing with that question the Subordinate Judge failed to refer to defendant 1's admission which, according to their Lordships of the Madras) High Court, clinched this matter, viz., that 'the plaintiff is cultivating all the lands as per list V in Ex. E', Their Lordships held that as the lower appellate Court did not take this piece of evidence into consideration this finding cannot be accepted as an unassailable final finding of fact.
9. In : AIR1944Mad121 , which was a Full Bench decision, Chief Justice Leach, who delivered the judgment in that case also came to a similar conclusion. His Lordship held that the finding of fact of the lower appellate Court would be binding on them if the District Judge had taken info consideration all the material evidence; but as obviously he has not done that, his Lordship held that the High Court was competent to interfere with the said finding.
The material evidence which was not taken into consideration by the lower appellate Court in that case was the fact that a sale has been held prior to the execution of the mortgage in question which was challenged in the suit as a sham transaction. This fact, according to their Lordships, was a material evidence in the case and as the lower appellate Court failed to consider the same, the High Court would be justified in interfering with the finding of the said Court.
10. In AIR 193: All 499 (SB), which was a Special Bench decision, their Lordships held that ignoring of important documentary evidence amount to a substantial error or defect in procedure within the meaning of Section 100(1)(c) of the Code of Civil Procedure and the High Court would be justified in reversing the finding if it holds that such reversal was justified on merits, The documents which were ignored were certain kabuliyaths and their Lordships interfered with the finding of the lower appellate Court on that ground and having come to a conclusion on the merits of the case they allowed the appeal and decreed the plaintiffs suit,
11. In AIR 1932 Lab 54, their Lordships of the Lahore High Court also held that where the lower Court leaves out an important piece of documentary evidence relating to a question of fact, the finding of the lower Court on that point is vitiated and such question of fact is open to examination in second appeal.
12. The two precisions of the Calcutta High Court on which Mr. T. Krishna Rao has relied, viz., : AIR1954Cal90 and AIR 1949 Cal 280 do not seem to me to have any direct bearing on this point.
13. A recent decision of this High Court in AIR 1960 Mys 231, on which also Mr. T. Krishna Rao relied, lays down the general proposition that if the lower appellate Court has failed to consider the evidence on record in arriving at the finding, the finding is vitiated and the High Court may in exercise of its power under Section 103 of the Code of Civil Procedure consider the evidence and arrive at a fresh finding.
The matter which, according to their Lordships, in that case the lower appellate Court failed to consider was that one Mariswamygowda, a relation of the plaintiff, reconveyed the property which was purchased by him to the plaintiff and in the said reconveyance it was stated that seeing that his father had been wasting all the property capriciously the sale deed came into existence.
This according to their Lordships, was material evidence which had not been considered by the lower appellate Court and, therefore, the lower appellate Court's decision could be interfered with by the High Court in second appeal. These decisions in my opinion, establish the proposition that it an important piece of evidence has not been considered by the lower appellate Court, then its finding is liable to be reversed by the High Court in second appeal.
14. Before leaving this point, I should mention that there is also a direct decision of the Patna High Court on this point which has been referred to by the learned advocate for the respondent. In Haradhan Mahto v. Litto Manjhi, 49 Ind Cas 832: (AIR 1919 Pat 124), the High Court of Patna took the view that non-consideration of an important piece of evidence amounts to an error of procedure and vitiates the decision of the lower appellate Court.
15. On these decisions I have little difficulty in accepting the contention of the learned advocate for the appellants, viz., that the decision of the lower appellate Court, if it fails to consider an important piece of evidence in the case, amounts to an error of procedure and is liable to be set aside by the High Court in second appeal.
16. As against these decisions, the learned advocate for the respondent referred us to Dibakar Nag v. Mrittunjoy Bhattacharya, 13 Ind Cas 495 (1)(Cal) Ram Khelawan v. Sri Ram, : AIR1952All191 and Ram Udit v. Bisheshwar, 54 Ind Cas 353 : (AIR 1919 Oudh 44). He also referred to the decision of the Supreme Court reported in D. Pattabhiramaswamy v. S. Hanymayya, AIR 1959 SC 57 and contended before us that the view taken by the Supreme Court is contrary to the view which has been taken in the decisions on which Mr. T. Krishna Rao relied. I shall examine the effect of the Supreme Court decision in AIR 1959 SC 57 hereafter. Before I do that I shall consider the other decisions on which the learned advocate for the respondent relied.
17. The case reported in 13 Ind Cas 495 (1) (Cal), in my opinion is distinguishable on facts from the present case. In that case, an important piece of evidence in question was not adverted to either by the trial Court or by the lower appellate Court. In this case, however, the trial Court has referred to Ex. A-24 and has relied upon it. In the said case what their Lordships held was that, in their opinion, the omission of the learned Subordinate Judge to make specific mention in his judgment of this particular exhibit and the statement contained in it does not amount to a specific error or defect in procedure within the meaning of section 100, C.P.C.
In my opinion, it was on the particular facts of that case that their Lordships held that the non-consideration of the documents in question did not vitiate the decision of the lower appellate Court. Their Lordships did not lay down any broad proposition as was contended for by the learned advocate for the respondent, viz., that even if a material document had not been taken into consideration, the decision of the lower appellate Court cannot be interfered with under Section 100 of the Code of Civil Procedure.
18. The next decision in : AIR1952All191 , it must be confessed, to a certain extent supports the view which has been pressed before us by the learned advocate for the respondent. But it should be mentioned that their Lordships ultimately came to the conclusion that they considered these documents and the decisions referred to but were not satisfied that they supported the contention advanced for the appellants.
It seems to me that the actual decision in that case did not proceed entirely on the view, viz., that non-reference to the documents in question did not make the decision of the lower appellate Court liable to be set aside in a second appeal. Their Lordships took into consideration the documents themselves and came to the conclusion that the documents did not support the contention for the appellants and thereafter came to their conclusion that the appeal should be dismissed.
19. The case reported in 54 Ind Cas 353: (AIR 1919 Oudh 44), is a decision of the Oudh Judicial Commissioner's Court. In that case it was held that where the document is of obvious weight or importance, it is incumbent on the Court to mention the document in its judgment and its omission to do so may be regarded by the Court of appeal as sufficient proof that the document was not taken into consideration. It was further held that the party is not entitled to have a document considered by the appellate Court, unless the attention of the. Court is drawn to it, or it is impliedly relied on. I do not think that this case is of any assistance to the respondent in this appeal.
20. I shall now come to the Supreme Court decision reported in AIR 1959 SC 57. Before I deal with the said decision it would be convenient to refer to a few more decisions to which the learned advocate for the respondent referred in his reply. They are Sheoraj v. Bechey Lal, , Sashi Kumari Devi v. Dhirendra Kishore : AIR1941Cal248 and Bhagwan Singh v. Ujagir Singh, AIR 1940 Pat 33. None of these decisions, in my Opinion, helps the learned advocate for the respondent in support of his contention.
21. In what was held was that a second appeal would not lie merely on the ground that the lower appellate Court in reversing the trial Court's judgment failed to consider all the circumstances on which the judgment of the Court was founded. In that case, oral evidence had been expressly discussed by the lower appellate Court in its judgment. The said Court also referred to one or two circumstances arising in the case.
What was contended before the Judicial Commissioner was that the lower appellate Court had not referred in its judgment to all the circumstances in the case. This, it was held in the said case, was unnecessary for the lower appellate Court to do. It was further held that a second appeal would not He merely on that ground. That, however, is not the position in the case before us. In this case a material document has not been taken into consideration by the lower appellate Court.
22. In the Calcutta decision reported in : AIR1941Cal248 , what was held was that it cannot be said that a judgment of reversal is not a proper judgment merely because all the reasons given by the original Court are not discussed. Their Lordships further observed that if the reasons given by the lower appellate Court are so cogent as to justify the finding, no discussion of other less convincing reasons is necessary and consequently, and in such a case an omission to discuss all the reasons given by the original Court is perfectly justified. It seems to me that both the Calcutta High Court in the case reported in : AIR1941Cal248 and the Oudh Court in , virtually said the same thing.
23. The last case cited by the learned advocate for the respondent in his reply is AIR 1940 Pat 33. This case, it should be noted, relates to another point which I shall deal with hereafter, the point being whether or not the appellants should be allowed to raise this contention, as in the ground of appeal it had not been mentioned. I shall consider this case when I deal with the said question.
24. There is, however, a decision of this High Court reported in Revappa v. Madhava Rao, AIR 1960 Mys 97, where the general proposition laid down by their Lordships is that the power of the High Court for setting aside a decision of facts arrived at by the first appellate Court is very limited and unless that judgment, according to their Lordships, is perverse, unless certain points of law have arisen which require consideration, unless the Judge has disregarded the procedure and there is a substantial error or defect in it or unless the Court below has failed to determine Some material issue of law or usage or unless the decision is contrary to law, the High Court will not easily upset the findings arrived at by the first appellate Court.
The learned advocate for the respondent sought to rely on these observations. In my opinion, the said observations cannot be of much assistance to him. It is clearly stated by their Lordships in the said observations that if the lower appellate Court has disregarded the procedure, then the High Court can interfere with the findings of the lower appellate Court. As I have already mentioned, non-consideration of an important piece of evidence amounts to an error of procedure and, therefore, on that ground the High Court would be justified in interfering with the findings of fact.
25. I now come to the Supreme Court decision reported in AIR 1959 SC 57. I should mention that there is a common notion prevalent in the Courts that what their Lordships in that case decided was that in no case interference with findings of facts is possible by the High Court in second appeal. We have carefully gone through the judgment of their Lordships and I do not think that their Lordships laid down such an extreme proposition.
In any event the question as to whether non-consideration of important piece of evidence amounted to an error of procedure and the High Court would be justified in interfering in second appeal when there has been such non-consideration was not the question which their Lordships were called upon to decide. On the facts of than case it appears that there were concurrent findings of the two Courts which were interfered with by the High Court, merely on reassessment of the evidence which was accepted by the lower Courts.
As pointed out by their Lordships in their judgment, the learned Judge of the High Court on consideration of the same evidence came to a conclusion different from the conclusion which was arrived at by the Courts below. It was further pointed out by their Lordships, that the learned Judge of the High Court for the first time in second appeal questioned the genuineness of the documents and found that their execution was not conclusively established.
It was on these grounds that their Lordships of the Supreme Court came to the conclusion that the learned Judge clearly exceeded his jurisdiction in setting aside the said finding. The provisions of Section 100, according to their Lordships, were quite clear and unambiguous and there is no jurisdiction to entertain a second appeal on ground of erroneous finding of fact, however gross the error may have been.
As I mentioned before, the question as to whether or not the High Court would be justified in interfering with the finding of fact if that finding was arrived at by the lower appellate Court without considering a material piece of evidence was not before their Lordships of the Supreme Court and their Lordships did not make any pronouncement in respect thereof.
I do not think that this decision of the Supreme Court in any way militates against the view which has been taken in the series of decisions --some of which were Full Bench and Special Bench decisions -- on which reliance was placed by the learned advocate for the appellants. I am unable to hold that this decision of the Supreme Court overruled or negatived the view taken in the said cases. That being so, I am clearly of the opinion that non-consideration of material evidence would amount to an error of procedure.
26. The question next to be considered is whether or not Ex, A-24 is a material piece of evidence in the case. My view is that it is a material piece of evidence which should have been taken into consideration and it is not known if the said document has been taken into consideration, what would have been the view of the lower appellate Court, The letter of the 2nd plaintiff written to the Bank suggests that the plaintiffs were the sureties in the transaction.
It is, however, for the lower appellate Court to determine the true effect of this letter taken along with the other circumstances. The learned advocate for the respondent urged before us that a decision of the questions involved in the case has to be arrived at on a consideration of all the evidence and circumstances of the case, I have no quarrel with that proposition.
But this Ex. A-24 is a material evidence which ought to have been taken into consideration by the lower appellate Court before it came to its conclusion. That being the position, the non-consideration of this piece of evidence has amounted to an error of procedure and the decision of the lower appellate Court is liable to be set aside on that ground.
27. In my opinion, however, it is not possible for us to examine the merits of the case ourselves and to decide the case one way or the other. The case, therefore, has to be sent back to the lower appellate Court for a re-hearing of the appeal before it in accordance with this judgment and in accordance with law.
28. Before concluding my judgment, I should mention that it was urged by the learned advocate for the respondent that this particular point was not raised in the grounds of appeal filed before us and he cited a decision reported in AIR 1940 Pat 33 in support of his contention, viz., that no point, which is not taken in the grounds of appeal, should be allowed to be urged at the hearing.
It is true that this ground has not been specifically raised in the grounds of appeal filed in this Court. But this point was fully argued by the learned advocate for the appellant and at that stage no objection was taken that it was not in the grounds of appeal. It was after the learned advocate for the appellants had concluded his argument that the learned advocate for the respondent took this objection before us,
As the matter was fully gone into and we had applied our mind to it and as there is a general ground, viz., that the decision of the lower appellate Court is wrong in law, I do not think we would be justified in preventing the appellant from raising this plea before us which, as I have mentioned, is a sound one and makes the judgment of the lower appellate Court liable to be set aside. This contention, in my opinion, should be overruled.
29. In the result, the decision of the lower appellate Court is set aside. This case is ordered to be sent back to the lower appellate Court for a re-hearing of the appeal before it in accordance with law and in accordance with this judgment. The costs of this appeal will abide by the final result of the suit. Refund of the court-fees is ordered.
Hombe Gowda, J.
30. I agree.
31. Order accordingly.