Conflicting oral testimony adduced by the parties
The question for our consideration is undoubtedly one of fact, the decision of which depends upon the appreciation of the oral Evidence adduced in the case. In such cases, the appellate Ct. has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in Ct.
This certainly does not mean that when an appeal lies on facts, the appellate Ct. is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice–that when there is conflict of oral Evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witness then unless there is some special feature about the Evidence of a particular witness which has escaped the, trial Judge’s notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate Ct. should not interfere with the finding of the trial Judge on a question of fact: vide Lord Atkin’s observations in W. C. Macdonald v. Fred Latimer, (112, I, O. 375). The gist of the numerous decisions on this subject was clearly summed up by Viscount Simon in Watt v. Thomas, (1947) A. C. 484, (1947-1 ALL E. R. 582), and his observations were adopted and reproduced in extenso by the Judicial Committee in a very recent appeal from the Madras H. C.: vide Veeraswami v. Talluri Narayya, (I. L. R. (1949) Mad. 487). The observations are as follows:
“But if the Evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial, and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate Ct. will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or its refraining from exaggeration. Like other tribunal he may go wrong on a question of fact, but it is a cogent circumstance that a Judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to Cts. of appeal) of having the witnesses before him and observing the manner in which their Evidence is given.”
Vide the observations of Lord Carson in Netherlandsche Handel v. R. M. P. Chettiar Firm, (7 Rang. 498). The duty of the appellate Ct. in such cases is to see whether the Evidence taken as a whole can reasonably justify the conclusion which the trial Ct. arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the Ct., outweighs such finding. Applying this principle to the present case, we do not think that the H. C was justified in reversing the finding at the trial Judge on the question of attestation of the document. In the opinion at the H. C., the story narrated by the pltf. and his servant is untrue, and the main reason given is, that it is not at all probable that the pltf. and not his father Bhikhi Ram was present at the palace of the Raja when the document was executed. The mtgor., it is said was an influential person in the locality occupying a very high social position and it would be indecorous and against Indian customs for a man like Bhikhi Ram not to be personally present when the Raja was going to execute a document in his favour. The learned Judges seem to think that the pltff, was not really at the spot when the mortgage deed was executed and as Bhikhi Ram was dead, this story was manufactured by the pltf. in order to enable him to prove attestation. Mr. Banerjee appearing for the deft. respt. went to the length of suggesting that it was only after Harbhajan Lal turned hostile on the witness box and denied that he attested the document that the new story was invented by the pltf.
Sarju Pershad case AIR 1951 SC 120 : (1950) SCR 781
