1. This Rule was issued at the instance of defendants Nos. 2 and 3 in a Small Cause Court suit on a bond. There were three defendants, and the learned Judge has found that the defendants Nos. 2 and 3 executed the bond and decreed the suit against them. As regards the first defendant he was not satisfied that the thumb mark which was said to be his on the bond corresponded with his thumb mark which was taken in Court, and, therefore, he was not prepared to hold that he was one of the parties who executed the bond. In the petition presented to this Court it was stated that of the three defendants only defendant No. 1 was examined and that the other two were not examined, because the Court remarked that their examination was unnecessary. The Small Cause Court Judge was asked to report on this allegation, and he states that it was not true that he remarked that the examination of defendants Nos. 2 and 3 was not necessary. With regard to that statement of the learned Small Cause Court Judge an affidavit has been put in by the Pleader who was acting on behalf of the defendants, and be states in that affidavit that his senior after the examination of the first defendant asked whether it was necessary to examine the other two defendants. The Court then enquired if they would corroborate the statement of the first defendant, and on the senior Pleader stating that they would, the Court remarked that it was not necessary to examine them. There is a general rule that the statement of the Judge trying a case as to what happened before him is conclusive on questions of fact. But this affidavit of the learned Pleader seems to suggest that there must have been some misunderstanding. It seems to me to be a rather remarkable state of things that a Pleader should ask the Court how he is to conduct the case, and if the Pleader adopts that line of conducting his case the matter is rather an unfortunate one for his client, because the blame for anything that subsequently happens cannot be thrown on the Court, though it might raise difficulties if the Court were led into expressing an opinion.
2. Another point that is taken is that the Court, having found that the first defendant was not a party to the bond, ought not to have given a decree against the other two defendants, and I am referred to the case of Gour Chandra Das v.Prasanna Kumar Chandra 33 C. 812 at p. 815 : 10 C.W.N. 783 : 3 C.L.J. 863. That case was cited before the learned Small Cause Court Judge, and with regard to it he remarked that there was no reason for dismissing the suit against all the defendants, because he was unable to find that there had been any fraudulent alteration of the bond after its execution. It is argued that it is not a question whether there is a fraudulent alteration or not, but whether there is an alteration at all. It is quite clear that what the learned Judge means is that he is not prepared to say that there has been any alteration, but that he is not satisfied that the thumb mark which purports to be that of the first defendant was in fact his. I have examined the thumb marks myself and I think the first defendant was distinctly fortunate in getting the judgment of the Court exonerating him from liability.
3. The Rule is discharged with costs, one gold mohur.