Full Judgment
Kendall, J.
1. This is an application for revision under Section 25, of the Small Cause Courts Act of a decree and order of the Judge of the Small Cause Court of Fatehpur, dismissing the plaintiff's suit. The plaintiff sued for the recovery of Rs. 318, principal and Rs. 182, interest said to have been advanced to the defendant on October 20, 1931, on an oral contract, and his case is that the defendant had subsequently executed a promissory note as collateral security, but that that note had been lost. The defendant denied having received any money from the plaintiff at all. The Court has found that the sum was advanced to the defendant, but that the promissory note which the plaintiff said has been lost was executed at the same time as the advance of the loan and had been handed to the plaintiff as the consideration for the loan itself and not as collateral security. The Court then went on to infer that as the promissory note had not been produced, it must have been executed on an insufficient stamp, and further inferred that the plaintiff was, therefore, withholding it and must have concocted a false story as to the transaction of the loan having been completed before the execution of the rukka.
2. It will be seen that the whole of this is conjecture except the fact that the money was borrowed from the plaintiff by the defendant. The plaintiffs case was that the promissory note had been executed as collateral security. If the plaintiff had been intending to set up a false case he might easily have made no mention of the promissory note at all. There is no evidence whatever to support the conjectures made by the Court, but there is clear evidence in the form of receipt executed by the defendant that the case as set up by the plaintiff in the plaint is substantially true, that the money was advanced to the defendant on an oral contract, and that the promissory note was afterwards executed as collateral security. There is nothing impossible in such a sequence of events. In fact in the Full Bench ruling in the case of Nazir Khan v. Ram Mohan 133 Ind. Cas. 307 : 29 A L J 64 : A I R 1931 All. 183 : 53 A 114 : Ind. Rul. (1931) All. 627, it is contemplated that such transactions may take place. It is quite possible of course that the plaintiff framed his plaint on a consideration of that decision, but that might be said of any plaintiff who had to sue in circumstances of this kind. In any case the trial Court has dismissed the suit in spite of the fact that the money was advanced on purely conjectural grounds, and I think I am bound to hold, therefore, that there has been a miscarriage of justice.
3. I allow the appeal, set aside the decree and order of the trial Court and direct that the plaintiff's suit be decreed with costs in both Courts.