- (1.) THIS appeal arises from the appellate judgment and decree of the learned District Judge of Pali dated April 6, 1960, by which he upheld the judgment and decree of the Civil Judge of Pali dated December 23, 1958.
(2.) AS it is admitted that the fate of this case would depend on the question whether the plaintiffs' suit was within limitation, it would be enough to state the facts shortly. The firm of Pukhraj Gheesulal had two partners Nathmal and Pukhraj. It had some transactions with the plaintiffs, but fell into difficulties and ultimately, according to the plaintiffs' version, the accounts were settled for Rs. 4274/10/6 and each of the two partners Nathmal and Pukhraj executed a separate khata in favour of the plaintiffs for the half amount of Rs. 2137/5/3 on Shrawan Sudi 15, Smt. 2001, at village Benda, to which the plaintiffs belonged. The plaintiffs raised the present suit in the court of Civil Judge of Pali on June 24, 1955, alleging that defendant Nathmal, who executed the suit Khata in his capacity as the Karta of his joint Hindu family, paid him only Rs. 135/8/- on Paush Sudi 3, Smt. 2006, by making an endorsement in his own hand writing in the Khata, and that the only other payment which he made was of Rs. 2/-on ASadh Sudi 11, Smt. 2008, which also was endorsed by Nathmal in the Khata. Thus the plaintiffs claimed that they were entitled to recover Rs. 1999/13/3 on account of principal and Rs. 600/2/9 for interest, making a total of Rs. 2600/ -. They clearly pleaded in paragraph 2 of the plaint that their samwat started from Mangsir Badi 1 and that as the payment of Rs. 2/- was made on July 3, 1952, which corresponded to ASar Sudi 11, Smt. 2008, the suit was within limitation. The defendants went to the extent of denying the execution of the Khata as well as the repayments of Rs. 135/8/-and Rs. 2/ -. They also pleaded that the plaintiffs' samwat did not start from Mangsir Badi 1, that Nathmal did not go to Denda on July 3, 1952, and that July 15, 1951 was the corresponding date of Asoj Sudi 11, Smt. 2008. Among the issues framed by the trial court, was issue No. 3, on the specific question whether the plaintiff's samwat started from Mangsir badi 1, and whether the suit was within limitation for that reason. The learned Civil Judge reached the conclusion that Asar Sudi 11, Smt. 2008 fell on July, 15, 1951, according to the Vikram samwat, and that the suit was barred by limitation. That finding having been upheld by the learned District Judge of Pali, plaintiff Bastimal has preferred this second appeal. It may be mentioned that both the courts below have recorded concurrent finding of fact to the effect that defendant Nathmal executed the suit Khata on Shrawan sudi 15, Smt. 2001, for Rs. 2137/5/3, as Karta of his Joint Hindu family, and that he paid Rs. 135 8/- on Paush Sudi 3, Smt. 2006 and Rs. 2/- on Asar Sudi 11, Smt. 2008. The correctness of these findings has not been challenged before me. It is also not in dispute that if the plaintiffs' samwat changed from Mangsir Badi 1, the date corresponding to Asar Sudi 11, Smt. 2008, on which the last payment of Rs. 21- was made, would be July, 1952 and the suit would be within limitation and should be decreed. The dispute is whether the plaintiffs could be said to have proved their contention that they changed their samwat from Mangsir Badi 1. As has been mentioned, both the courts below have held that the plaintiffs followed the Vikram samvat. But it has been argued by Mr. T. C. Mehta that the finding is vitiated by three apparent and substantial errors of law and procedure and that it is necessary for me to reassess the evidence and record my own finding. Firstly, it has been argued by Mr. Mehta that while plaintiff Bastimal recorded his own statement in support of his contention that the plaintiffs' samwat changed from Mangsir Badi 1, and examined his ex-munim Kheema Ram P. W. 2, the trial court altogether lost sight of the statement of Kheema Ram while giving its finding against the plaintiffs, and that as a similar mistake has been committed by the learned Judge of the appellate court also, the finding of fact must be held to be vitiated. The argument is quite correct and must be upheld. On the question whether the plaintiffs changed their samwat from Mangsir Badi 1, the statement of a person who had worked as their Munim was obviously of considerable importance. The fact that Kheema Ram had ceased to function as the plaintiffs' Munim, did not detract from the value of his statement. On the other hand, it went to show that he was not under their influence or control at the time when he recorded his statement. Even defendant Nathmal admitted that there was no enmity or ill-will between him and Khimaram. The testimony of Khimaram was therefore of considerable importance, not only because of his special knowledge about the date of commencement of the plaintiffs' samwat, but also because there was nothing on the record to show that he was interested in siding the plaintiffs and deposing against the defendants. When the statement of such an important witness, which went to corroborate the testimony of plaintiff Bastimal was lost sight of by the two courts below, it cannot legitimately be argued that this court should hold itself bound by the finding of fact of those courts. It has been argued by Mr. Parakh, on behalf of the defendants-respondents, that their Lordships of the Supreme Court have drawn up an exhaustive list, in paragraph 12 of their judgment in Ramchandra Ayyar Vs. Ramalingam (1) of the reasons for which a finding of fact can be ignored in second appeal, and that their Lordships have not ruled that any such interference should be made merely because a part of the evidence on the record even though important, has been lost sight of. I have carefully gone through the judgment of their Lordships, but I do not find any thing to support Mr. Parakh's contention. Their Loardships have pointed out that|sec. 100 (1) (c) Civil Procedure Code refers to a substantial error or defect in the procedure and so if it can be shown that such a defect or error exists in the impugned judgment, and if it can so be shown that the defect may possibly have produced an error or defect in the decision of the case upon the merits, there would be ample justification to take the view that the finding of fact has been vitiated within the meaning of sec. 100 (l) (c ). And if these tests are fulfilled, the finding of fact will not be binding in second appeal. As it has been shown that the statement of a witness which was of considerable value for determining the question of fact in dispute, was completely lost sight of not only by the trial court but the court of firs appeal, the finding of fact must be held to be vitiated because that (would be a substantial defect or error of procedure as it would adversely affect the 'decision of the case on the merits. There is nothing in their Lordships' judgment which could be said to fun counter to the view I have taken. As a matter of fact a somewhat similar point arose for consideration before this Court in Chandraram vs. Bhoma (2), and Wanchoo C J. , as he then was, took the view that the second appellate court was not bound by the finding of fact arrived at by the Judge when that finding over-looked completely evidence of a material 'witness on an important point. This was also the view of a full bench of the Madras High Court in Veda-chala Chettiar vs. Amina Bi Ammal (3 ). The defect pointed out by Mehta is therefore sufficient to vitiate the finding of fact of the lower appellate court. Mr. Mehta has pointed out the second defect that the courts below committed the error of making out a new case for the parties when they recorded the finding that the plaintiffs followed the Vikram Samwat. This argument is also correct for, as has been mentioned earlier, while the plaintiffs took the plea that their samwat started from Mangsir Badi 1, the defendants contended themselves with a bare denial that this was not so. They filed their amended written statement almost two years after the institution of the suit, but did not take the plea, even at that distance of time, that the plaintiffs observed the Vikram samwat, or that they themselves did so and recorded the date of payment according to their samwat. It does not therefore require much argument to say that the plaintiffs followed the Vikram samwat. The two courts below committed the serious mistake of making out a new case altogether which had not been pleaded by either party. This defect is also sufficient to vitiate the finding of fact on the point. Thirdly, Mr. Mehta has pointed out that while the plaintiffs led their evidence to prove that their samwat changed from Mangsir Badi 1, the defendants did not produce any evidence to show that the plaintiffs followed the Vikram Samwat, so as to justify the conclusion that July 15, 1951, was the corresponding date of Asar Sudi 11, Smt 2008. This argument is also correct because the defendants have not examined any witness to prove that the plaintiffs followed the Vikram samwat and even defendant Nathmal has not ventured to state that this was so. For all these reasons, the finding of the learned Judge of the lower appellate court on issue No. 3 that the plaintiffs' samwat changed according to the Vikram calendar, cannot bind this Court and it is necessary for me to go into the evidence and arrive at my own finding. For the reasons mentioned above, I do not find the defendants' evidence to be directly in point, or reliable. I have already given my reasons for placing reliance on the statements of plaintiff Bastimal P. W. 5 and Kheema Ram P. W. 2. The only argument which has been made against the statements of these witnesses is that if the plaintiffs really changed their samwat from Mangsir Badi 1, they would have produced their books of account in proof of their contention. This line of defence was adopted in the cross examination which was directed against the two witnesses, but a reading of the statements shows that the witnesses stood the test of cross-examination quite successfully. Plaintiff Bastimal has stated that he only maintained his 'khata Bahi' and as he did not maintain a cash book, it was not possible for him to show from his books of account that he changed his samwat from Mangsir Badi 1. This statement of Bastimal has been amply corroborated by the statement of Kheemaram P. W. 2. When therefore the plaintiffs were not maintaining a cash book, and merely recorded the Khatas of the persons to whom moneys were advanced from time to time in their 'khata Bahi', there is no justification for the argument that they withheld their books of account, or that those books would have gone against them if produced. On the other hand, such a charge can be laid at the door of the defendants. It has not been disputed that Nathmal and Pukhraj used to maintain their books of account. Pukhraj was examined on behalf of the plaintiffs and he clearly stated that all the account books of the firm were with defendant Nathmal. In respect of that assertion, the witness was not cross-examined, so that his statement practically went unchallenged. It is true that Nathmal has stated that the books of account were with Pukhraj, but I would reject his statement for the reason that if this had been so, an effective cross-examination would have been directed against Pukhraj on the point. For the reasons mentioned above, I have no hesitation in arriving at the conclusion that the plaintiffs have succeeded in proving that their samwat changed from Mangsir Badi 1, and as it is not in dispute that, if this is so, the plaintiffs' suit would be within limitation as Asar Sudi 11, Svt. 2008, would fall on July 3, 1952, it must be held that the plaintiff's suit was within limitation.
(3.) AS no other point has been argued, the appeal is allowed, the judgment and decree of the learned District Judge of Pali dated April 6, are set aside and the plaintiffs' suit is decreed for Rs. 2600/. with pendente lite and future interest on the principal sum of Rs. 1999/13/9, at 4 per cent per annum. The appellants will be entitled to their costs throughout. The prayer for leave to appeal has no force and is rejected. .;