A finding of fact arrived at by a single judge of the High Court in a first appeal is open to challenge under Clause 15 of the Letters Patent.

( 1 ) THIS is an appeal under Clause 15 of the Letters Patent against the judgment and decree of Sanjeeva Row Nayudu, J. parity reversing the judgment and decree of the Subordinate Judge, of Vijayawada in O. S. No. 148 of 1954. The plaintiff is the appellant. He instituted a suit for recovery of Rs. 5825. 00 on foot of a promissory note executed by the defendant in his favour on 30-7-1951. The plaintiff and the defendant have married-sisters. The plaintiff is a resident of Manikonda and the defendant is a resident of Avutapalli. The case of the defendant is that he made in all ten payments on different dates and that only a balance of Rs. 1973. 00 was due by him. The learned Subordinate Judge accepted the evidence of the plaintiff and rejected the evidence of the defendants witnesses as to the several alleged payments. In the result, he decreed the suit as prayed for. On appeal to this Court, the learned Judge held thfct out of the ten payments, seven payments were untrue. Relying on the evidence of D. W. 3, the learned Judge held that the three payments dated 11-9-52, 27-10-52 and 3-12-52 of Rs. 500, Rs. 700, and Rs. 200. 00 respectively were true- He disallowed the claim of the plaintiff in regard to those amounts. He has consequently preferred the Letters Patent Appeal.

( 2 ) WE have carefully perused the entire documentary and oral evidence in the case. Exhibits B. 1 and B-2 do not throw any light on the three payments in dispute. On 19-9-1952 under Exhibit B-2, the plaintiff requested the defendant to send the money for purchasing a site. There is no reference to the payment of Rs. 1100. 00 in that letter. The next letter Exhibit B-1 dated 30-11-53 also throws no light on the truth of the payments. He requested the defendant to bring not less than Rs. 3000. 00. The evidence of the defendant in regard to these three payments was disbelieved by the learned Subordinate Judge who heard and saw him as also by the learned Judge of this Court. Exhibit B. 3 is relied on by the defendant to prove that certain calculations of payments were made between the parties. The document is understandable as pointed out by both the Courts.

( 3 ) THERE are two clinching circumstances which lead us to the conclusion that the payments are not true. In paragraph 2 of the written statement, the defendant stated that he made all the entries of payment in his note-book on the respective dates. Exhibit B-3 shows that the defendant is a timber merchant carrying on business at Avutapalli. The defendant has not produced his note book to evidence the payments. The Subordinate Judge rightly drew adverse inference as against the defendant for the non-production of the account book. The learned Judge disbelieved the other seven payments on the ground that the account book has not been produced. But for no reason whatsoever he did not advert to this circumstance in believing these payments.

( 4 ) IT is only on the evidence of D. W. 3, that the learned Judge has found that the three payments are true. We have perused the evidence of D. W. 3 carefully. We are not inclined to accept his evidence. Though he speaks to an entry having been made in the account book of the defendant in regard to the sum of Rs. 200. 00 paid on 3-S2-1952, as pointed supra, the account book is suppressed by the defendant. If really the plaintiff had asked the defendant to send Rs. 400. 00through D. W. 3, he would have certainly sent a letter to that effect and that letter would have been the best evidence for corroborating the evidence of D. W. 3. It is also surprising that the two payments of Rs. 500. 00 and Rs. 700. 00 were made by the defendant to the plaintiff at a hotel in Vijayawada, D. W. 3 stated that he accompanied the plaintiff on 11-9-52 and 27-10-1952 to Vijayawada and that those payments were made in his presence by the defendant. The payments appear to have been made by the defendant at Vijayawada by a strange coincidence when both the plaintiff and D. W. 3 went to the s

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