ABDUL KHADER Vs. ABDUL RAHIMAN
LAWS(KER)-1963-6-21
HIGH COURT OF KERALA
Decided on June 28,1963

ABDUL KHADER Appellant
VERSUS
ABDUL RAHIMAN Respondents




JUDGEMENT

- (1.)The two plaintiffs who are the respondents in this second appeal, sued the defendant, who is the appellant, to recover a sum of Rs. 4,105/- alleged to have been borrowed by him, and interest thereon. The major part of this sum amounting to Rs. 2,250/-, was said to have been a borrowing from the plaintiff's firm on the 11th March, 1952, and the balance to have been borrowings from the 2nd plaintiff in varying amounts on different dates commencing from October, 1951, and ending with the 1st March, 1952, the total amount of the borrowings being Rs. 4,395/-. Alleging repayment to the extent of Rs. 300/- the suit was mainly for the balance. The defendant denied the alleged borrowings and contested the genuineness of the entries in the account books relied on against him and pleaded that the suit was filed as a result of enmity towards him, as he had married a second time on the 28th February 1952, during the subsistence of his marriage with Sarumma, who is the daughter of the first plaintiff and the sister inlaw of the second plaintiff. The two courts below have decreed the suit. The chief ground urged in second appeal was, that by the failure of the Subordinate Judge in appeal, to advert to important and material evidence and to weigh and appreciate oral evidence on his own he had committed a substantial error or defect in procedure which has affected the decision on the merits.
(2.)To appreciate the point, a few details have to be stated. As observed, the major borrowing was of Rs. 2,250/- and was after the 28lh February, 1952, the date of the defendant's second marriage. The two plaintiffs when they were examined as P. Ws. 1 and 4 respectively, even denied that the defendant had married Sarumma, and while P. W. 1 admitted having known that the defendant had married one Aboobacker's daughter, P. W. 4 said that he knew nothing about it. Ext. B2 deed of settlement of the year 1950 executed by the 1st plaintiff in favour of Sarumma and of the defendant has proved positively the defendant's first marriage and the first court disbelieved P. W. 1 on this ground; the case that the. defendant's second marriage was on the 28th February 1952, was also accepted. Two witnesses P. W. 2 who spoke to the entries in the plaintiffs' books of account, and P. W. 3 a salesman of their firm who testified to the advances, were believed. P. W. 4 the second plaintiff was also believed by it, taking the view that he was not shown to have any enmity towards the defendant by reason of the second marriage.
(3.)In appeal, the Subordinate Judge did not consider the plea of enmity, or the reason alleged therefor by the defendant, and accepted the account books as genuine. The testimony of P. W. 1 was discussed, but the Judge held his evidence to be of no use to prove the loan. The testimony of P. Ws. 2 to 4 on which the first court had relied was not considered specifically. Although the discussion in his judgment in paragraph 8 opened with the sentence "the entire matter rests on oral evidence", after referring to the seals of the income tax officer found on some of the books of account bearing the date, 10th October, 1952, he observed:
"We have to go to the oral evidence and see whether the accounts have been proved. In this connection I may as well state here that the appellate court not having had the opportunity of seeing the witnesses in the box, in matters of pure appreciation of oral evidence, its hands generally are curtailed in departing from the conclusions arrived at by the lower court. Of course it is not an inflexible rule. If the entire evidence adduced will tend to a different conclusion, then there is justification for an interference."

and later

"The entire evidence has been in this connection thrashed out at length by the lower court. I have gone through the entire evidence carefully and I do not think there is any reason to depart from the conclusions arrived at by the lower court in regard to the genuineness of the accounts produced."

and wound up the discussion in the following terms:

"On a perusal of the oral evidence I feel that the lower court in this connection has come to the right conclusion that the account books maintained are correct, and that the entries as well as the entire accounts have been proved."

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