- (1.) THE judgment and decree dated 25. 7. 2000, passed by Civil Judge (SD), Mawli, accepting a suit for recovery of money, stood reversed by first appellate court vide judgment and decree dated 15. 3. 2002, hence this revision petition is preferred by the plaintiff.
(2.) THE material facts in brief are that the plaintiff sought a decree for recovery of money in the tune of Rs. 16,117/-, said to be due against the defendant on purchase of cloth. A credit entry was also made in this regard and the defendant put a mark of thumb impression thereon. THE dues were not satisfied despite demand and notice. The defendant's case is that he purchased cloth from the plaintiff and in total an amount of Rs. 1150/- was due but that was paid in barter by giving wheat, mustered seeds and peanuts. The defendant denied the claim made by the plaintiff and also averred that his thumb impression was obtained on the credit note by misrepresentation. On basis of pleadings, following issues were framed by the trial court:- *** During trial, statements of plaintiff Sampatlal (PW-1) and defendant Onkar (DW-1) were recorded and a document Ex. 1-A was exhibited. As per the statements of Sampatlal, on 12. 7. 1992, a credit entry for the sum of Rs. 9371/- was made against the defendant and the same was accepted by him by putting his thumb impression. The entry aforesaid was written by Shantilal at the instance of defendant, the defendant failed to satisfy the credit despite repeated demands. In cross examination plaintiff Sampatlal denied that due against defendant was of only Rs. 800/- and Rs. 350/ -. He also denied that dues were satisfied in barter by getting peanuts, mustered seeds and wheat. Defendant Onkar, an illiterate farmer, stated on oath that during marriage of his sister he purchased cloth of Rs. 1600/- from the plaintiff and against that he paid a sum of Rs. 800/-, as such a sum of Rs. 800/- only was due. He further stated regarding purchase of cloth of Rs. 700/- for "mayra" (a ritual to be observed by brother during marriage of sister or in sister's family) and out of that too a sum of Rs. 350/- was paid. As per defendant Onkar the amount kept due as above was satisfied by giving wheat, mustered seeds and peanuts to the plaintiff. The writing of credit entry was also denied by the defendant, however, while accepting thumb impression he stated that the same was obtained by the plaintiff by saying that no further demand survives after receiving wheat, mustered seeds and peanuts.
(3.) LEARNED trial court, on acceptance of thumb impression, drew a presumption of the existence of the fact relating to dues of money and decided all issues in favour of the plaintiff. The suit was decreed accordingly. The first appellate court, after considering and re-appreciating the entire evidence available, decided the issues No. 1, 4, 5 and 6 in favour of the plaintiff but reversed the findings of trial court relating to remaining issues. The first appellate court accordingly set aside the judgment and decree dated 25. 7. 2000 and dismissed the suit. To challenge the judgment and decree dated 15. 3. 2002 passed by the first appellate court, at the first instance, the plaintiff preferred a second appeal before this Court, however, the same was converted in the present revision petition, as the suit was relating to recovery of a sum of less than Rs. 25,000/ -. The ground to challenge the judgment and decree passed by learned appellate court is that once the defendant accepted his thumb impression on the credit note, then the appellate court should have presumed the existence of the fact relating to money due against the defendant as per the provisions of Section 114 of the Indian Evidence Act, 1872. It is urged that the trial court rightly presumed the due against the defendant, but the appellate court erroneously reversed the judgment on the ground that Shantilal, the person who written the credit note/entry, was not produced in evidence and as such the credit note was not authenticated. ;