1. The defendants in Suit No. 941 of 1971 on the file of the Third Judge, court of Small Causes, Madras, are the petitioners in this revision. The plaintiff in that suit is the respondent herein. The plaintiff instituted the suit for recovery of a sum of Rs. 810 claimed to be due on a promissory note. The defendants contested the suit mainly on the ground that the suit promissory note marked in this case as Ex. P-1, and which bears a date 17-4-1969 was not executed in the year 1969, but they executed the document only in the year 1967 and when they executed the document, they signed the printed form which was blank. The trial court mooted out the following points for determination-
"1. Whether the defendants executed the suit pronote and borrowed the sum of Rs. 1,500;
2. Whether the defendants had borrowed a sum of Rs. 1,500 in 1967 only and that too had been discharged?"
It considered the evidence, oral and documentary, placed before it. P. W. 2 is the son of the plaintiff and he would state that after he filled up the promissory note, the defendants signed the same and received the consideration. He has admitted that he did not maintain any accounts, that he does not know anything about the money lending truncations of his father, that he does not know whether his father is paying income-tax, that he does not know how the money is collected and that since he happened to be present at the time when the defendants borrowed the money, he was asked to fill up the promissory note. The trial court was not impressed by his evidence and found that he is not speaking the truth in its entirely and is keeping back something. When it was suggested to P. W. 2, that the money was lent in 1967, he stated that he does not remember the year in which it was lent. Admittedly, the account books of the plaintiff were not produced. The non-production of the account books is significant and justifies the drawing of an adverse inference against the plaintiff, because I find from the discussion in the judgment of the trial court that originally the suit was decreed with costs and on a new trial court that originally the suit was decreed with costs and on a new trial application by the defendants, the new trial Bench of the Court of Small Causes, Madras, remitted the matter back to the first court so as to afford an opportunity to the defendants to cross-examine the plaintiff's son who was admitted to have filled up the promissory note and also all the account books of the plaintiff since the plaintiff is enjoyed to maintain the same as a professional money lender. Assessing the materials on record, the trial court came to the conclusion that the suit promissory note was executed only in 1967. So also the trial court accepted the case of the defendants that the amounts due under the promissory note have been discharged. The plaintiff preferred a new trial application, which came to be heard and disposed of by the New Trial Bench of the Court of Small Causes, Madras, as N.T. A. No. 135 of 1973. The New Trial Bench mooted out the point for determination in the following terms-"Whether the judgment and decree passed by the learned trial Judge on 28-4-1973 cannot be sustained." The New Trial Bench considered that in view of the admitted signatures of the defendants found in Ex. P-1, the promissory note, which is a negotiable instrument, the burden is upon the defendants to prove their case as pleaded by them and that in their view, the defendants have failed to discharge that burden. The New Trial Bench considered the reasonings of the trial court for negativing the claim of the plaintiff and they observed that they were unable to agree with the observation and the view taken by the trial court. The New Trial Bench began to re-assess the evidence in extenso and they came to a conclusion contra to that of the trial court and they held that the defendants executed Ex. P-1, the promissory note on 17-4-1969, viz., the date which it bears and the defendants borrowed the sum of Rs. 1,500 from the plaintiff on that date and that the defendants had repaid only Rs. 1,000 leaving the balance unpaid. In this view, the New Trial Bench reversed the judgment and decree of the trial court and the plaintiff's suit was decreed as prayed for with costs throughout.
2. The defendants have preferred this revision as against the judgment and decree of the New Trial Bench. Learned counsel for the petitioners urges that the New Trial Bench has exceeded the limits of the jurisdiction vested in them under S. 38 of the Presidency Small Cause Courts Act 15 of 1882. It has been uniformly recognised by the decisions of this court that a New Trial Bench of Court of Small Causes under S. 38 of the Act, does not exercise appellate powers and has no jurisdiction to decide questions of fact. However, if it comes to the conclusion that the findings of the trial Court are unsupported by evidence, the proper procedure is not to give fresh findings, but to order a new trial. In Madras Cine Service v. Shyamala Pictures (P.) Ltd., (1968) 2 Mad LJ 205, Ramaprasada Rao J. Observed as follows :-
"Even on a prima facie reading of the said section read in conjunction with S. 37, which gives a finality and conclusiveness to the decrees and orders of the trial court in the Small Cause Court, it appears to me that the powers of the new trial Bench are purely revisional and not appellate in character. As prefaced by me, it is possible that a different mind might come to a different conclusion on the same set of facts. But that by itself does not enable the New Trial Bench of the Court of Small Causes to reverse the decision of the trial court only on the ground that on the facts and circumstances of that particular case, it has come to a conclusion different from that arrived at by the trial Court."
3. The learned Judge makes reference to two earlier judgments of the Full Bench of this court reported in Sadasook Gambiar Chund v. Kannayya, (1896) ILR 19 Mad 96 (FB) and Sikandar Rowther v. Ghouse Mohidin Marakayar, ILR 40 Mad 355 : (AIR 1917 Mad 135 (2)) (FB). Thus, it is clear that a Full Bench of the Small Cause Court sitting under S. 38 of the Presidency Small Causes Courts Act, has no jurisdiction to decide questions of fact generally; nor has it jurisdiction to decide questions of fact, when those questions of fact first arise before it in consequence of its finding on a question of law.
4. In this view, it is very difficult to sustain the judgment of the New Trial Bench in the present case. From a perusal of the judgment of the New Trial Bench, I find that they have sifted through the evidence in detail and had chosen to come to a conclusion entirely different from that given by the trial court.
5. Mr. V. Gajapathi, learned counsel for the respondent, relied upon the operative portion of the judgment of Ramaprasada Rao J. in Madras Cine Service v. Shyamala Pictures (P.) Ltd., (1968) 2 Mad LJ 205, where the learned Judge, on the facts of that case, has chosen to remit the matter to the trial court to reconsider it. The learned Judge repelled the argument that the New Trial Bench should not choose to discharge with the trial court on questions of fact. It was observed that the Judges of the New Trial Bench are not helpless and they do not lack jurisdiction if they come to the conclusion that the findings of the trial court cannot be sustained. They can remit the matter to the trial court for reconsideration of the entire issue. I respectively agree with the dictum laid down by the learned Judge. But the facts of that case are different from the facts of the present case. Therein the learned Judge found that the trial court has made irreconcilable observations and it is not clear from the judgment of the trial court as to what is the clinching finding of fact which prompted it to dismiss the suit. It was only in those circumstances, the learned Judge decided that the suit be tried once over so that a clear finding of fact may be secured on the question in issue. In the present case, I find that the trial court has come to a definite conclusion on appreciation of evidence, oral and documentary, that the suit promissory note was executed only in the year 1967 and not in 1969 as mentioned in the plaint. It is this categorical finding of the trial Court that has been substituted by the finding of the New Trial Bench. As stated earlier, such a substitution of finding is not competent for the New Trial Bench of the Court of Small Causes in exercise of powers under S. 38 of the Presidency Small Cause Courts Act. Further, I do not think that any useful purpose would be served in remitting the matter back to the trial Court for a fresh finding. The findings having been already rendered by the trial court in unmistakable terms and the New Trial Bench having chosen to interfere with such findings of fact and substitute its own findings in the place of such findings of the trial court, I feel that an interference in revision is warranted. In this view, I allow this revision, set aside the judgment and decree of the New Trial Bench and restore the judgment and decree of the trial court. There will be no order as to costs in this revision.
6. Revision allowed.