1. This rule is directed against a judgment & decree passed by a F. B. of the Small Causes Ct. whereby the Bench decreed a suit for damages brought by the opposite party against the petnr. on account of a certain defect said to have been discovered in an Electrolux purchased by the former from the latter. The opposite party was attracted by an advertisement, appearing in the Statesman of 17-4-1946. By that advertisement the petnr. invited purchasers for an 'Electrolux gas operated, Model L.22, 3 1/2 cubit ft. Inspection by appointment. Phone P. K. 2583.' On the same day the opposite party went to the petnr's. house with her brother & a person who is an employee of the Oriental Gas Co. Ltd., had a look at the machine & made the purchase for Rs. 850. Subsequently, she by a letter, sent through her Solicitor, on 9-5-1946 complained to the deft. that she had made a false representation as regards the serviceable character of the machine & that it was in a defective condition. Some correspondence followed in the course of which the opposite party asked the petnr. to take the machine back & to refund the purchase money. That offer was not accepted & ultimately the suit out of which this rule arises was brought.
2. The trial in the first instance ended in a dismissal. The learned Judge of the 5th Bench found that as the opposite party had purchased the machine after examination of the same by an expert she was not entitled to recover any damages on account of any defect subsequently discovered in the machine. This decision was however set aside on an appln. made by the opposite party & a new trial granted. At the new trial, the F. B. held that there had been no examination by any expert inasmuch as Mr. Boswell who was said to be the expert who had examined the machine, was not an expert on refrigerators at all. On the other hand, the learned Judges found that no express warranty by the petnr. as regard the quality of the machine had been proved. The learned Judges have however decreed the suit in the view that a defect had in fact been proved & if it had been, the opposite party was entitled to rely upon the breach of an implied warranty as provided for in Section 59, Sale of Goods Act & sue for damages as she had done. In that view, the F. B. passed a decree for Rs. 430/-Rs. 400/- being awarded as damages & Rs. 30/-as costs of getting the machine sold by certain auctioneers I have omitted to mention that after the petnr. had refused to take the machine back, the opposite party caused the machine to be sold through Messrs Staynor & Co. & obtained a price of Rs. 400.
3. It is contended in support of the Rule, that the F. B. had no jurisdiction to go behind the findings of fact arrived at by the trial Judge. The argument was that the trial Judge had expressly found that there had been an expert examination of the machine & in view of that finding, it was not open to the F. B. to hold that no expert examination had taken place. I do not consider it necessary to go into the question as to the extent of the powers of a F. B. of the Small Causes Ct. at a new trial, for assuming that the powers are only revisional, the Bench certainly has jurisdiction to alter a finding if it was arrived at on a clear misunderstanding of the evidence. I do hot say that misappreciation of evidence would entitle a revisional Ct. to interfere with findings of fact, but a misunderstanding of evidence certainly will. I do not consider that there is any substance in the first point.
4. It is contended in the second place that the F. B. erred in law in holding that the opposite party could succeed under Section 59, Sale of Goods Act, upon the footing of an implied warranty having been broken. It is pointed out that under Section 16, Sale of Goods Act, there cannot be any implied warranty as regards the quality of the goods sold except in certain cases which were not material so far as the present case is concerned. I think, however, that the present case is not a case of warranty at all but clearly a ease of a condition. The defect complained of is that the Electrolux does not form ice. It was contended that even if the machine did not form ice it still did other things & that the sole function of a refrigerator was not to form ice but also to keep vegetables & food stuff in a proper condition. I do not think that that distinction is in any way material. Surely if one goes in for an Electrolux or Refrigerator, he expects it to perform all the functions which machines of that character ordinarily perform. If, therefore, an Electrolux does not form ice but does the other things which machines of this character usually do, I should still be prepared to hold that it is a defective machine & that' if anybody sells a machine of that kind, there is a breach of a condition. If there is a breach of a condition, as on the pltf's. case in the present ease there undoubtedly was, she was entitled under Section 59 of the Act to treat that breach of a condition as a breach of warranty & then proceed to seek the reliefs provided for in the section. The position, therefore, is that although it is quite true that there could not be an implied warranty in a case of this description, the purchaser could ask for damages on the basis of a breach of warranty by treating a breach of a condition as a breach of the former kind. I am accordingly of opinion that although the view taken by the F. B. as regards the basis on which Section 59 could be applied is erroneous, the section is still applicable, although on a different basis. There is therefore, no substance in the second contention either.
5. There is, however, another defect apparent on the face of the record for which the opposite party was bound to fail. The purchase was made on 17-4 1946, & the first complaint to the petnr. was not made till 9-5-1946. Admittedly, there had been interferences with the machine by certain mistries of the Oriental Gas Co & also by a certain expert of that company who gave evidence in the case. The pltf's. own case is that the machine was taken to her house in a dismantled condition. In those circumstances, it was the pltf's. duty, if she intended to rely upon the defective condition of the machine at the time she purchased it, to prove that it was in that condition at that time & that the condition of which she complained had not been brought about by subsequent interference. As, however, the record stands, there is nothing whatever to show how the machine was dealt with between the I7th April & the 9th May or at any rate between the 17th April & the 24th of that month when the expert, P. W. 4 first examined the machine at the pltf's. house. The possibility that the defect had been brought about by imperfect assemblage on the first occasion or subsequent mishandling by the plft or her people has by no means been excluded & the pltf. has led no evidence whatever on which it can at all be held that the machine was in the condition in which it is now, at the time when she purchased it. She has thus not proved that one essential fact which she was required to prove. She must, therefore fail.
6. On behalf of the opposite party, I have been invited by Mr. Mallik to send the case back so that there might be a new trial in the real sense of the term. He complained that although his client had led necessary evidence, the evidence had not been properly recorded. I am not prepared to accede to Mr. Mallik's prayer at this stage. If evidence was not properly recorded, it was open to the pltf. to make an appln. to the trial Judge to bring the record into order. If she wished to lead any further evidence, it was equally open to her to apply to the F. B. for an opportunity to do so. Having done neither & having now discovered that there is an essential lacuna in the evidence led by her, the pltf. cannot expect to be allowed a third opportunity to make out a case which she has had already two opportunities to do & of which she has failed to take any advantage.
7. For the reasons given above, this Rule is made absolute. The judgment & decree of the F. B. are set aside & the plft's. suit dismissed. In view of the facts of the case I direct that each party will bear her costs throughout.