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A.S. Nagappa Chetty Vs. Gridaridass Tikamdas - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1958)2MLJ437
AppellantA.S. Nagappa Chetty
RespondentGridaridass Tikamdas
Cases ReferredSai Sikandar Rowtker v. Ghouse Mohidin Marakayar
Excerpt:
- - in such circumstances it is well-settled that the full bench of the small causes court has no jurisdiction to give a finding on such a question of fact. , that a misreading or wrong interpretation of the evidence will amount to a question of law and setting right the misreading and incorrect interpretation of the evidence placed before the trial judge by the new trial judges was well within their powers......letter of guarantee. in that view they considered the question of fact whether exhibit p-2 was in fact a renewal of an earlier letter of guarantee given by the petitioner in respect of the suit debt. they held that exhibit p-2 was in renewal of a contemporaneous unstamped letter of guarantee executed by the petitioner on the date of the suit debt. in passing i may mention that in coming to this conclusion the learned judges omitted to consider one or two relevant circumstances, namely, as to what was the nature of the guarantee, when was it given, who was in custody of that letter of guarantee and why was it not sought to be produced into court. it is unnecessary to pursue this point further in view of the fact that i propose to send the case back for rehearing by the trial judge.2. the.....
Judgment:

Ramachandra Iyer, J.

1. This Civil Revision Petition is directed against decree of the Court of Small Causes, Madras in N.T.A. No. 358 of 1954. The second defendant is the petitioner. The suit was filed by the respondent on a promissory note executed by the first defendant. The second defendant was sought to be made liable for the debt due by the first defendant on the basis of a letter of guarantee, Exhibit P-2 alleged to have been executed by him. That letter, Exhibit P-2 bears a date later than the date of the promissory note. The case for the plaintiff in regard to the letter of guarantee was two-fold. The first was that it was supported by independent consideration, namely respondent giving time for payment by the debtor and secondly, that it was only a renewal of his earlier letter of guarantee given on the date of the promissory note. The first defendant was ex parte but the second defendant contested the claim by disputing the genuineness of Exhibit P-2 and also its relation to the suit debt. The learned trial judge decreed the suit against the first defendant but dismissed the same against the petitioner, second defendant. He rejected the second defendant's contention that Exhibit P-2 was given in relation to his own indebtedness to the plaintiff but held that as it bore a date later than the date of the promissory note it was not supported by consideration. He, however, did not give a definite finding on the question whether Exhibit P-2 was in renewal of an earlier guarantee given by the second defendant to the plaintiff in respect of the suit debt. The plaintiff filed an application for new trial under Section 38 of the Presidency Small Causes Courts Act. The learned Judges of the Full Bench of Small' Causes Court who heard the new trial application held that the question of consideration for the guarantee would not arise if Exhibit P-2 was a renewal of an earlier letter of guarantee. In that view they considered the question of fact whether Exhibit P-2 was in fact a renewal of an earlier letter of guarantee given by the petitioner in respect of the suit debt. They held that Exhibit P-2 was in renewal of a contemporaneous unstamped letter of guarantee executed by the petitioner on the date of the suit debt. In passing I may mention that in coming to this conclusion the learned Judges omitted to consider one or two relevant circumstances, namely, as to what was the nature of the guarantee, when was it given, who was in custody of that letter of guarantee and why was it not sought to be produced into Court. It is unnecessary to pursue this point further in view of the fact that I propose to send the case back for rehearing by the trial Judge.

2. The learned advocate for the petitioner has rested his case on the question of jurisdiction of the Judges constituting the Full Bench to adjudicate on a question of fact. As stated already there was no finding given by the trial Judge on the question whether Exhibit P-2 was in fact a renewal of an earlier unstamped letter of guarantee. That fact became relevant only after the Full Bench held that the question of consideration would be immaterial if really Exhibit P-2 was a renewal of an earlier guarantee. In such circumstances it is well-settled that the Full Bench of the Small Causes Court has no jurisdiction to give a finding on such a question of fact. In Sai Sikandar Rowther v. Ghouse Mohidin Marakayar (1916) 32 M.L.J. 213 : I.L.R. Mad. 355, the second question that was referred to the Full Bench was whether the Full Bench of the Small Causes Court sitting under Section 38 had no jurisdiction to decide question of fact when the question of fact first arises before it in consequence of its finding on another question of fact or law. That question wasa nswered in the negative. At page 364 of the Report Wallis, C.J. observed:

As regards the second question whether the Full Bench of the Small Causes Court had jurisdiction to decide questions of fact generally when the question of fact first arises before it in consequence of its finding on another question of fact or law it has already been shown that the Full Bench has no power to decide questions of fact. No such power has yet been conferred upon the Court of Small Caues and we must accordingly answer the second question in the negative.

3. In Kuppuswami Chetty v. Sarasvathi Ammal : AIR1941Mad769 , Wadsworth, J., observed as follows:

If it (the Full Bench) comes to the conclusion that the findings of fact by the trial Judge are unsupported by evidence and are such as to justify interference in revision the appropriate procedure is not to give fresh findings of fact but to order a retrial at which the facts may be gone into afresh.

4. A similar view was taken by Basheer Ahmed Sayeed, J., in Nataraja Mudaliar v. Ponnukannammal : (1949)2MLJ737 . The Full Bench of the Court of Small Causes has, therefore, no jurisdiction to give a finding for the first time as to whether Exhibit P-2 was a renewal or not.

5. Learned Counsel for the respondent has referred me to a decision reported in Thangavelar v. Rama Iyer (1956) M.W.N. 535 , where it was held by Somasundaram, J., that a misreading or wrong interpretation of the evidence will amount to a question of law and setting right the misreading and incorrect interpretation of the evidence placed before the trial Judge by the new trial Judges was well within their powers. In that case there was no question of the Full Bench giving a finding on a question of fact for the first time, there having been no finding on the point by the trial Judge. Somasundaram, J., referred to the decision in Sai Sikandar Rowtherv. Ghouse Mohidin Marakayar (1916) 32 M.L.J. 213 : I.L.R. Mad. 355, and stated that the second question that arose in that case did not arise for consideration in the case before him and that it was, therefore, unnecessary to refer to it.

6. The decision reported in Homi Wadia v. D.S. Kapoor : AIR1956Bom125 , was next referred to. In that case also there was no question of the Full Bench of the Small Causes Court giving a finding on a question of fact on which there was no finding by the trial Judge. The cases cited on the side of the respondent do not therefore qualify in any way the second proposition stated in Sai Sikandar Rowtker v. Ghouse Mohidin Marakayar (1916) 32 M.L.J. 213 : I.L.R. Mad. 355. Learned advocate for the respondent next contended that on the finding by the Full Bench that the question of consideration cannot arise if Exhibit P-2 was a renewal of an earlier letter of guarantee the only conclusion possible on the evidence was that Exhibit P-2 was a renewal of another letter of guarantee. I cannot really appreciate the point. The petitioner denied that Exhibit P-2 ever related to the suit debt and it was for the trial Judge to adjudicate the question whether Exhibit P-2 had really any relation to the suit debt.

7. The result is that the order of the Full Bench in N.T.A. No.358 of 1954 has to be set aside and the question as to whether Exhibit P-2 was a renewal of another letter of guarantee given by the petitioner for the suit debt will have to be decided by the trial J udge. The Civil Revision Petition is allowed and the suit is remanded to the trial Judge for disposal afresh in the light of the observations contained herein. Each party will bear his respective costs in this Court.


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