The duty of a first appellate judge is to independently appraise the oral evidence and come to independent conclusions, even if there is no complaint of the lower court going wrong or misreading the evidence.

1. I had occasion to consider in Avirah Abraham v. Chacko Mathai (S.A. No. 1111 of 1960) an appellate judgment of the Subordinate Judge, another of whose appellate judgment is now before me in this second appeal. In the earlier judgment the Subordinate Judge said:

"The testimony of these witnesses have been considered in extenso by the court below and no reason is assigned to show that there was misreading of evidence by the learned Munsiff. When a meticulous examination of the deposition of witnesses was made by the learned Munsiff and when there is nothing to show that he has misread the evidence or has gone perverse, I do not think it proper to re-assess the oral evidence in the case."

I pointed out in that case that the duty of a first appellate judge was not to consider the oral evidence only if he was satisfied that the trial judge had gone perverse or had misread the evidence; but his duty was to consider the evidence independently by himself and to see whether the conclusions reached by the trial judge were correct.

2. In the present judgment of the same Subordinate Judge he has said:

"The oral evidence in the case has been carefully considered by the learned Munsiff and no room for any complaint is given that the lower court has gone wrong or perverse or has misread the evidence in the case. So much so, I do not think that it would be proper to discuss the oral evidence in the case."

I think the stage is reached when I should disabuse the Subordinate Judge of his erroneous conception of his duties as a first appellate judge. As a first appellate judge, he is a judge of facts as well; and it is his duty to appraise the oral evidence in the case also independently and come to independent conclusions. It is only proper, nay it is even incumbent on him, to discuss the oral evidence; and such consideration of the oral evidence will not be improper, as he wrongly thinks.

3. In the earlier case, to avoid a remand, I had to consider the oral evidence and I am constrained to adopt the same course in this case as well to obviate a remand of an old case, which is already fifteen years old.

4. A copy of this order will be sent to the Subordinate Judge wherever he is and the case will be taken up later for considering the entire evidence.