KAYAROHANA CHETTIAR Vs. NAGALINGA CHETTIAR

JUDGEMENT

(1.) The plaintiff entrusted his bundle, containing Rs. 430, to the 1st defendant to be kept whilst the two went to a godown ten feet distant for a short time. The 1st defendant put it in an unlocked box, in which he had money of his own. When the two went away the 1st defendant s nephew was in the shop, though he was not actually asked to mind it. On the return of the plaintiff and the 1st defendant the money was gone. The Subordinate Judge held that the 1st defendant was not negligent and dismissed the plaintiff s Small Cause suit. A learned Judge of this Court revised this decision, passing the decree for the plaintiff which is before us on appeal. The facts stated above are all that are material, except perhaps what the learned Judge and the Subordinate Judge have not referred to, though they doubtless had it in mind, that there is no allegation in the plaintiff s evidence of his having told the 1st defendant anything regarding the amount of the money entrusted.

(2.) It is, no doubt, the case that this Court has before now interfered in revision with Small Cause decrees, based on a flagrant misinterpretation or disregard of evidence. But we do not understand the learned Judge to have done so in this case or to have based his judgment on anything except what he held to be the lower Court s mistake of law.

(3.) That mistake was, as we understand him, not its adoption of the measure of care actually taken by the 1st defendant to preserve his own money in the box as the test, by which his conduct in connection with the plaintiffs had to be tried, instead of the care which a man of ordinary prudence would take, as Section 151 of the Indian Contract Act prescribes. For he refers to the former only in connection with an argument advanced in support of the lower Court s judgment, not in connection with the judgment itself. The learned Judge s ground of decision was that negligence was not established and he treated this as matter of law, because it involved an inference from the facts found.