A court acting in revisional jurisdiction under Section 115 of the Civil Procedure Code, 1908, can interfere if it finds that the appellate court erroneously refused to consider admissible and material evidence that influenced the final order, resulting in gross injustice.

G. B. PATTANAIK, J.

( 1 ) DEFENDANT is the petitioner against the Judgment of the Subordinate Judge, Bargarh, in Money Appeal No. 5 of 1977. Originally a second appeal had been filed but being confronted with the provisions of S. 102 of the Civil P. C. , the Second Appeal has been converted to a civil revision.

( 2 ) PLAINTIFF filed the suit for recovery of a sum of Rs. 730/- on the allegation that the defendant had taken a loan of Rs. 575/- from him on 19-8-1971 with the promise to repay it with interest at the rate of 12 per cent per annum and since the defendant did not repay the amount in spite of service of a registered notice on 1-8-1973, the suit was filed.

( 3 ) THE defendant filed a written statement taking the stand that the plaintiff has been paid all his dues under receipt Dt. 14-7-1973 executed by the plaintiff in favour of Potula Venkata Satyanarayana Murty, the brother of the defendant, living in joint mess and property and, therefore, the suit was liable to be dismissed.

( 4 ) THE learned Munsif on an analysis of the evidence adduced by the parties held that D. Ws. 2 and 3 were disinterested witnesses and were co-villagers of the plaintiff and their testimony, therefore, deserved utmost credence. He also considered Ext. A, the receipt granted by the plaintiff, in support of the repayment of the loan and ultimately held that the defendant had paid the amount through D. Ws. 2 and 3 to the plaintiff as averred in the written statement. While accepting Ext. A, the learned Munsif also relied upon the evidence of D. W. 1 who had scribed the receipt and in whose presence the plaintiff had appended his signature (Ext. A/1) on Ext. A. On a finding that the loan amount had been paid by the defendant, the suit was dismissed.

( 5 ) ON appeal, the learned Subordinate Judge, disagreeing with the findings of the learned Munsif held that the defendant had not paid the dues to the plaintiff which was still outstanding against him and, therefore, the defendant was bound to repay the dues to the plaintiff as claimed. This finding of the Subordinate Judge is being challenged by the defendant in this revision.

( 6 ) MR. P. K. Misra, learned Counsel appearing for the petitioner contends that the appellate Court acted with material irregularity in exercising jurisdiction as the evidence of D. Ws. 2 and 3 was ignored on the ground that the factum of repayment had not been pleaded in the written statement. He further contended that Ext. A was similarly not relied upon on a flimsy ground that existence of Ext. A was not disclosed by the defendant in his reply to the notice given by the plaintiff. Thus, according to him, illegal exclusion of evidence of D. Ws. 1 and 2 and Ext. A has caused gross miscarriage of justice and, therefore, the High Court has jurisdiction under S. 115 of the Civil P. C. to interfere with the ultimate finding of the appellate Court. Mr. S. C. Mohapatra, learned Counsel for the plaintiff-opposite party, on the other hand, contends that the appellate Court having appraised the evidence and having come to a finding that the loan amount had not been repaid and the said finding not being relatable to the jurisdiction of the Court, the High Court will not exercise its discretionary jurisdiction under S. 115 of the Code to correct that finding of the appellate Court even if the same is palpably erroneous. Mr. Mohapatra in support of his contention places reliance on the decision of the Supreme Court in the case of Hari Shankar v. Rao Giridhari Lal Chowdhury, AIR 1963 SC 698 and the decision of this court in the case of Lokanath Maharana v. Dr. A. B. Mohanty (1977) 43 Cut LT 520. The latter decision of this Court has in fact relied upon the decision of the Supreme Court referred to supra. The Supreme Court in fact has approved a passage from the judgment of Beaumont, C. J. in the case of Bell and Co. Ltd. v. Waman Hemaraj, AIR 1938 Bom 223. Beaumont, C. J. was considering a case under S. 25 of the Provincial Small C