1. The plaintiff entrusted his bundle, containing Rs. 430, to the 1st defendant to be kept whilst the two went to a godown ten feet distant for a short time. The 1st defendant put it in an unlocked box, in which he had money of his own. When the two went away the 1st defendant's nephew was in the shop, though he was not actually asked to mind it. On the return of the plaintiff and the 1st defendant the money was gone. The Subordinate Judge held that the 1st defendant was not negligent and dismissed the plaintiff's Small Cause suit. A learned Judge of this Court revised this decision, passing the decree for the plaintiff which is before us on appeal. The facts stated above are all that are material, except perhaps what the learned Judge and the Subordinate Judge have not referred to, though they doubtless had it in mind, that there is no allegation in the plaintiff's evidence of his having told the 1st defendant anything regarding the amount of the money entrusted.
2. It is, no doubt, the case that this Court has before now interfered in revision with Small Cause decrees, based on a flagrant misinterpretation or disregard of evidence. But we do not understand the learned Judge to have done so in this case or to have based his judgment on anything except what he held to be the lower Court's mistake of law.
3. That mistake was, as we understand him, not its adoption of the measure of care actually taken by the 1st defendant to preserve his own money in the box as the test, by which his conduct in connection with the plaintiffs had to be tried, instead of the care which a man of ordinary prudence would take, as Section 151 of the Indian Contract Act prescribes. For he refers to the former only in connection with an argument advanced in support of the lower Court's judgment, not in connection with the judgment itself. The learned Judge's ground of decision was that negligence was not established and he treated this as matter of law, because it involved an inference from the facts found.
4. With all due respect we do not think this sustainable. There are no doubt cases such as Thomas Giblin v. McMullen (1868) 2 P.C. 317 in which the question whether there is any evidence of negligence is dealt with as one for the Judge, not the Jury; and there are others in which the question, whether proof of gross negligence or ordinary negligence was necessary and had been given, was treated as one of law. But the present case does not resemble them and we have been shown nothing in support of the general proposition which the learned Judge's judgment involves. The Subordinate Judge, as his judgment shows, tested the 1st defendant's conduct with reference to the proper standard, that is prescribed in Section 151 of the Indian Contract Act, the care which a man of ordinary prudence would take in similar circumstances; and it is not shown that he made any mistake in applying that test. The result of his application of it must then be accepted as final.
5. In these circumstances we must allow the Letters Patent Appeal, set aside the decision under appeal and restore that of the Subordinate Judge. The respondent will pay the appellant's costs in this Court.
Sadasiva Aiyar, J.
6. I agree. It is not shown that the Subordinate Judge misunderstood the law or that the inference of fact at which he arrived, namely, that there was no such negligence on the part of the 1st defendant as a man of ordinary prudence acting in respect of his own affairs might have acted as the 1st defendant did is a perverse finding of fact. Nor is it shown that the only possible inference on the facts proved was the contrary inference. See Sreemant Raja Yerlagadda Mallikarjuna Prasad a Naidu Bahadur v. Rayapati Venkata Vasudeva Row 9 Ind. Cas. 169.