1. This is a plaintiff's second appeal from the decree of the District Judge of Ganganagar.
2. The plaintiff had filed a suit against Bhoma defendant-respondent for Rs. 545/-. His ease was that there was an agreement between him and the defendant who had agreed to make a 'kund' for him according to certain specification. He had, therefore, paid Rs. 475/-to the defendant for that purpose. The defendant, however, did not make the 'kund' according to the specification. The suit was, therefore, brought for return of the amount of Rs. 475/-and for another sum of Rs. 70/- on account of certain other items.
3. The defence of the defendant was that he had received only Rs. 425/-. He also denied having received the other articles worth Rs. 70/-. Finally, he said that the 'kund' had beenconstructed according to the specification and, therefore, nothing was due from him. The defendant went on to say that he was entitled to Rs. 160/- from the plaintiff. 4 (4) The trial Court came to the conclusion that only Rs. 425/- had been paid by the plaintiff to the defendant. It also came to the conclusion that the plaintiff was not entitled to any sum on account of anything else. Finally, it held that the 'kund' had not been made according to specification and, therefore, after deducting Rs. 200/- which was the price of the amount actually spent on whatever had been made by the defendant, a decree for Rs. 225/-was passed against the defendant.
5. The plaintiff was satisfied with this decree and did not appeal. The defendant, however, appealed. His appeal was allowed by the learned District Judge on the ground that the judgment and decree was based entirely on the inspection made by the Munsiff under Order 18, Rule 18, Civil P. C. and that a note of inspection by the Court cannot be a substitute for evidence. The learned Judge was also of opinion that the plaintiff in his evidence had failed to prove how the 'kund' had not been prepared according to specification.
6. The plaintiff has come in second appeal to this Court and two contentions have been raised on his behalf. In the first place, it is urged that the learned Judge, when he arrived at the conclusion that the plaintiff had failed to prove that the 'kund' had not been made according to specification, completely overlooked the evidence of one material witness Onkar Mistri who was produced on 16-6-1949. It is, therefore, urged that this Court is not bound by the finding of fact arrived at by the Judge when that finding overlooks completely the evidence on the point. The record shows that Onkar Mistri was examined on 16-6-1949 and there is no mention of his evidence in the judgment of the Judge. This witness gave evidence as to the specification of the 'kund'. Considering that the Judge has overlooked this evidence altogether and it is of the utmost importance in the suit, I am of opinion that I am entitled to weigh the evidence afresh. His evidence shows that the length and breadth of the kund were according to specification but the 'raddas' were not according to specification with the result that the 'kund' cracked and could not hold water. If the learned Judge had considered this evidence, he would not have remarked that there was no evidence to show that the 'kund' was not according to specification and that the inspection note was being made a substitute for evidence. The basis, therefore, on which the learned Judge come to the conclusion that it had not been proved that the 'kund' was not according to specification, fails. Taking into account the evidence of Onkar Mistri and also the inspection note of the trial Court which goes to support that evidence, there can be no doubt that the 'kund' was not according to specification and the finding of the first Court on this point was correct.
7. The second point that has been urged on behalf of the appellant is that in this particular case, the inspection note alone was sufficient as the inspection was not purely under Order 18, Rule 18, Civil P. C. The law is well settled that an inspection under Order 18, Rule 18 is for the purpose of understanding the evidence and cannot be a substitute for evidence of the parties. But in special cases, an inspectionnote can also be a substitute for the evidence of parties. This is so where parties ask the Court to go and inspect the subject matter and thereafter give a decision on the basis of the result of the inspection and state that they would not lead any evidence on the point on which they desire inspection. I may in this connection refer to the case of -- Municipal Committee, Bilaspur v. Wamanrao Vinayakrao', AIR 1941 Nag 292 (A). It was held that in an ordinary case the opinion of the Judge formed on spot inspection could not take the place of evidence, but where the parties had agreed to accept the opinion of the Judge on certain point requiring spot inspection and for that reason led no evidence, in such special circumstances, the opinion of the Judge could be accepted in place of evidence. The other case is -- 'Amratlal v. Land Acquisition Officer, Ahmedabad', AIR 1945 Bom 302 (B). In this case it has been stressed that it is always desirable in all cases where local inspection is necessary that the Judge should carry out the inspection at any stage before the arguments are heard, and if he conducts the inspection at the request of the parties, it should be made clear whether the parties have left the matter to be decided as he thinks proper from his inspection or that he is merely inspecting under Order 18, Rule 18. It is clear from this observation that if the inspection is made at the request of the parties who have left the matter to be decided as the Judge thinks proper from his inspection, the inspection note can take the place of evidence.
It has, therefore, to be seen whether in this case, the inspection was at the request of the parties and that they had said that they would not lead any evidence after the Judge had inspected the site. It appears that the plaintiff did make an application of this kind on 31-12-1946. There is, however, no application of the defendant to this effect. Learned counsel for plaintiff-appellant relies on the order of 31/12/ 1946 in this connection and says that the defendant had agreed to that position. The order sheet says that the plaintiff has prayed that the Court might inspect the locality and the defendant's counsel has no objection. The order-sheet then goes on to say that in such circumstances, there would be no necessity for evidence on either side. Unfortunately, it is not clear from the order-sheet whether the defendant had categorically agreed to abide by the result of the inspection. Under these circumstances, this argument on behalf of the appellant fails. But as I have already indicated, there was evidence on this record which the learned Judge completely overlooked. When that evidence is taken into account along with the inspection note, there can be no doubt that the plaintiff had proved that the 'kund' had not been prepared according to the terms of the agreement. In this view of the matter, the appeal should be allowed and the judgment of the trial Court restored.
8. I, therefore, allow the appeal, set aside the judgment and decree of the District Judge and restore the judgment and decree of the Munsiff. As the defendant-respondent has not appeared in this Court, I pass no order as to the costs of this Court. The plaintiff will get proportionate costs of both the lower Courts from the defendant.