The main legal point established in the judgment is the application of S.35A of the Civil Procedure Code to award compensatory costs in cases where the claim or defense is found to be false or vexatious.

1. A suit for money on the basis of an oral loan has been dismissed by the court below. This revision is against the said decree dismissing the suit. The learned Munsiff has also ordered the plaintiff to pay compensatory costs under S.35A of the Civil Procedure Code to the defendant.

2. The plaintiff and the defendant are cousins. The plaintiff's case is that on 25-2-1979, the defendant had received a sum of Rs. 3,000/- from the plaintiff and had undertaken to repay the money immediately and despite several demands the same had not been repaid.

3. The defendant in his written statement had denied the alleged transaction. The further averments of the defendant show that he had entered into an agreement with another person for the sale of his properties on 3-6-1978 and thereafter the sale deed had been executed and registered and he had left the locality for good. According to him, he had no need to take a loan from the plaintiff. In the written statement, he has said that the cause of action and the statement regarding court fee set out in the plaint are false. Then he claims compensatory costs.

4. The learned Munsiff, after referring to the testimonies of the plaintiff and the defendant as PW.1 and DW.1 respectively, came to the conclusion that the plaintiff has not proved his claim. Thereupon the learned Munsiff has dismissed the suit.

5. While discussing the point regarding costs, the learned Munsiff has found that the plaintiff's claim is false and vexatious and on account of the conduct of the plaintiff, subsequent to the filing of the suit, the learned Munsiff held that this is a fit case where compensatory cost is to be awarded.

6. While exercising the power of revision under S.115 of the Civil Procedure Code, there will be no justification in interfering with the fact finding of the court below, unless it is shown that the trial court had failed to exercise a jurisdiction vested in it. (The other limbs of the revisional powers are not relevant here). The learned counsel for the petitioner has drawn my attention to a very crucial sentence in the cross examination of DW.1, virtually admitting that he has received a sum of Rs. 3,000/- from the plaintiff on 25-2-1979. The learned counsel for the defendant-respondent has pointed out that it is an apparent error in the recording of the deposition and that can be seen from the rest of the portion of the deposition itself. He also brought to my notice that the defendant had filed I. A. No. 965 of 1982 for correcting that sentence in the deposition of PW.1. The said I. A. seems to have been filed only on 29-3-1982 which is long after the disposal of the suit itself (the suit had been disposed of on 30-9-1981). The trial court did not accede to the request, quite justifiably according to me, because that court had ceased to exercise jurisdiction in this case on 29-3-1982.

7. What happens if the aforesaid crucial sentence in the cross-examination of DW.1 remains on record? If the trial court has observed that the said sentence is only a mistake, then perhaps, it would not be open to the revisional court to take a different view. Now the position is that the trial court is totally silent about that part of the evidence when it wrote the judgment in this case. Without adverting to it a decision ought not have been made, for, the impact of that sentence in the testimony of DW.1 is of a decisive proportion. It may even amount to an admission. The learned counsel for the petitioner contends that the said sentence in the testimony of DW.1 is the achievement of a successful cross-examiner in the art of ferreting out the truth from the opposite side. I do not wish to go that far because I do not know whether it is the effect of the art of cross-examination or is the defect of recording of the deposition. I feel that in the interest of justice, the defendant must be given one more opportunity to examine himself further to clarify that aspect. I do not overlook the certificate incorpo