JUDGMENT S. Velu Pillai, J. 1. The two plaintiffs who are the respondents in this second appeal, sued the defendant, who is the appellant, to recover a sum of Rs. 4,105/- alleged to have been borrowed by him, and interest thereon. The major part of this sum amounting to Rs. 2,250/-, was said to have been a borrowing from the plaintiff's firm on the 11th March, 1952, and the balance to have been borrowings from the 2nd plaintiff in varying amounts on different dates commencing from October, 1951, and ending with the 1st March, 1952, the total amount of the borrowings being Rs. 4,395/-. Alleging repayment to the extent of Rs. 300/- the suit was mainly for the balance. The defendant denied the alleged borrowings and contested the genuineness of the entries in the account books relied on against him and pleaded that the suit was filed as a result of enmity towards him, as he had married a second time on the 28th February 1952, during the subsistence of his marriage with Sarumma, who is the daughter of the first plaintiff and the sister-in-law of the second plaintiff. The two courts below have decreed the suit. The chief ground urged in second appeal was, that by the failure of the Subordinate Judge in appeal, to advert to important and material evidence and to weigh and appreciate oral evidence on his own he had committed a substantial error or defect in procedure which has affected the decision on the merits. 2. To appreciate the point, a few details have to be stated. As observed, the major borrowing was of Rs. 2,250/- and was after the 28lh February, 1952, the date of the defendant's second marriage. The two plaintiffs when they were examined as P. Ws. 1 and 4 respectively, even denied that the defendant had married Sarumma, and while P. W. 1 admitted having known that the defendant had married one Aboobacker's daughter, P. W. 4 said that he knew nothing about it. Ext. B2 deed of settlement of the year 1950 executed by the 1st plaintiff in favour of Sarumma and of the defendant has proved positively the defendant's first marriage and the first court disbelieved P. W. 1 on this ground; the case that the. defendant's second marriage was on the 28th February 1952, was also accepted. Ext. B2 deed of settlement of the year 1950 executed by the 1st plaintiff in favour of Sarumma and of the defendant has proved positively the defendant's first marriage and the first court disbelieved P. W. 1 on this ground; the case that the. defendant's second marriage was on the 28th February 1952, was also accepted. Two witnesses P. W. 2 who spoke to the entries in the plaintiffs' books of account, and P. W. 3 a salesman of their firm who testified to the advances, were believed. P. W. 4 the second plaintiff was also believed by it, taking the view that he was not shown to have any enmity towards the defendant by reason of the second marriage. 3. In appeal, the Subordinate Judge did not consider the plea of enmity, or the reason alleged therefor by the defendant, and accepted the account books as genuine. The testimony of P. W. 1 was discussed, but the Judge held his evidence to be of no use to prove the loan. The testimony of P. Ws. 2 to 4 on which the first court had relied was not considered specifically. Although the discussion in his judgment in paragraph 8 opened with the sentence "the entire matter rests on oral evidence", after referring to the seals of the income tax officer found on some of the books of account bearing the date, 10th October, 1952, he observed: "We have to go to the oral evidence and see whether the accounts have been proved. In this connection I may as well state here that the appellate court not having had the opportunity of seeing the witnesses in the box, in matters of pure appreciation of oral evidence, its hands generally are curtailed in departing from the conclusions arrived at by the lower court. Of course it is not an inflexible rule. If the entire evidence adduced will tend to a different conclusion, then there is justification for an interference." and later "The entire evidence has been in this connection thrashed out at length by the lower court. Of course it is not an inflexible rule. If the entire evidence adduced will tend to a different conclusion, then there is justification for an interference." and later "The entire evidence has been in this connection thrashed out at length by the lower court. I have gone through the entire evidence carefully and I do not think there is any reason to depart from the conclusions arrived at by the lower court in regard to the genuineness of the accounts produced." and wound up the discussion in the following terms: "On a perusal of the oral evidence I feel that the lower court in this connection has come to the right conclusion that the account books maintained are correct, and that the entries as well as the entire accounts have been proved." 4. I shall not be understood as expressing any opinion in this judgment touching the merits of the case or the credibility of the evidence, my observations being limited only to a consideration of the points urged before me and to the disposal of the second appeal. The first point was that the Subordinate Judge did not advert to the evidence, oral as well as documentary, that even while the defendant's marriage with Sarumma was subsisting, he married a second time on the 28th February, 1952, so as to embitter his relationship with both plaintiffs and to render it improbable that they advanced a loan of over Rs. 2000/- within a few days, whatever may be said about the prior advances. It can hardly be disputed, that such evidence on account of its bearing on the main issue is material and important. The second point was, that owing to a preconceived notion of some sort of fetter, or curtailment, as the Judge seemed to characterise it, in his power to weigh and appreciate oral evidence recorded by the Trial Court, he did not weigh, much less appreciate independently, the testimony of P. Ws. 2 to 4 on any aspect of the case. The second point was, that owing to a preconceived notion of some sort of fetter, or curtailment, as the Judge seemed to characterise it, in his power to weigh and appreciate oral evidence recorded by the Trial Court, he did not weigh, much less appreciate independently, the testimony of P. Ws. 2 to 4 on any aspect of the case. The assurance by the Judge in the judgment, to which my attention was invited by counsel for the plaintiffs, that he has "gone through the entire evidence carefully" or that he has perused "the oral evidence" could hardly suffice to meet the requirements of law; the appellate court has to feel satisfied that the subordinate court had applied its mind in weighing evidence in accordance with well established judicial standards. The passages in the judgment extracted above and the failure to weigh the evidence, lend support to the contention that the Judge was labouring under a misconception as to his powers and duties as an appellate court in weighing oral evidence. 5. The pronouncements of the Supreme Court in at least two cases deserve attention in this connection. In Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh ( AIR 1951 SC 120 ) at pages 121 and 123, the Court observed: "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 court 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 court. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. This certainly does not mean that when an appeal lies on facts, the appellate court 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 witnesses, 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 court should not interfere with the finding of the trial Judge on a question of fact ........ The duty of the appellate court in such cases is to sec whether the evidence taken as a whole can reasonably justify the conclusion which the Trial Court arrived at or whether there is an element of improbability arising from proved circumstances which in the opinion of the court, outweighs such finding." In Radha Prasad Singh v. Gajadhar Singh ( AIR 1960 SC 115 ) at page 118 also, the court observed: "It is the right and the duty of the Appeal Court to consider what its decision on the question of facts should be; but in coming to its own decision it should bear in mind that it is looking at the printed record and has not the opportunity of seeing the witnesses and that it should not lightly reject the trial Judge's conclusion that the evidence of a particular witness should be believed or should not be believed particularly when such conclusion is based on the observation of the demeanour of the witness in Court. But, this does not moan that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. But, this does not moan that merely because an appeal court has not heard or seen the witness it will in no case reverse the findings of a trial Judge even on the question of credibility, if such question depends on a fair consideration of matters on record. When it appears to the Appeal Court that important considerations bearing on the question of credibility have not been taken into account or properly weighed by the trial Judge and such considerations including the question of probability of the story given by the witnesses clearly indicate that the view taken by the trial Judge is wrong, the Appeal Court should have no hesitation in reversing the findings of the trial Judge on such questions. Where the question is not of credibility based entirely on the demeanour of witnesses observed in Court but a question of inference of one fact from proved primary facts the Court of Appeal is in as good a position as the trial Judge and is free to reverse the findings if it thinks that the inference made by the trial Judge is not justified." The passages extracted above from the judgment of the Subordinate Judge do not show that he understood his powers and duties correctly as laid down by the Supreme Court. 6. But it was strenuously contended for the plaintiffs, that no ground has been made out under S.100(1)(a), (b), (c) C. P. C. for interference in second appeal, relying on the pronouncement of the Supreme Court in Y. Ramachandra Ayyar v. Ramalingam Chettiar ( AIR 1963 SC 302 ). This case is authority for holding, that for interference in second appeal under S.100(1)(e), the error or defect must be substantial and must be one of procedure and that such error may have affected the decision of the case upon the merits. There is a string of judicial decisions of the High Courts in India that failure to advert to or disregard of vital and important evidence is such an error or defect in procedure. See Helava v. Sasigowda (AIR 1960 Mysore 231); B. Iddinabba Abdu v. Abdulkadri Cheria Bava (AIR 1961 Mysore 146); Municipal Board, Banaras v. Kandhaiya Lal (AIR 1931 Allahabad 499); Haradhan Mahtho v. Litto Hanjhi (AIR 1919 Patna 124), This was also considered to be an error of law in Kishan Prasad v. Union of India (64 Calcutta Weekly Notes 272). See Helava v. Sasigowda (AIR 1960 Mysore 231); B. Iddinabba Abdu v. Abdulkadri Cheria Bava (AIR 1961 Mysore 146); Municipal Board, Banaras v. Kandhaiya Lal (AIR 1931 Allahabad 499); Haradhan Mahtho v. Litto Hanjhi (AIR 1919 Patna 124), This was also considered to be an error of law in Kishan Prasad v. Union of India (64 Calcutta Weekly Notes 272). That, if material evidence was overlooked, the finding of fact will not be binding in second appeal, has been ruled in Govindian v. Chacko ( 1959 KLT 1348 ); Vedachala Chettiar v. Ammanna Bi Ammal (AIR 1944 Madras 121); Ganga Singh v. Santosh Kumar (AIR 1963 Allahabad 194); Venkatlal Baldeoji Mahajan v. Kanhivalal Janakidas (AIR 1963 Madhya Pradesh 155) and Sathi Sattemma v. Bathi Subbi Reddy (AIR 1963 Andhra Pradesh 72). The categorisation of errors or defects in procedure, in V. Ramachandran Ayyar's case, whether by way of inclusion or exclusion, was not in my opinion intended to be exhaustive. If the rejection of evidence on the erroneous ground that it is inadmissible is an error or defect in procedure, discarding important and material evidence, which has been admitted, is also a like error or defect. The word 'procedure' was not limited by the Supreme Court to the procedure followed in the trial of suits, and may well extend to certain basic considerations underlying the judgment, as the instances cited by the Supreme Court show, such as omitting to consider an issue found to be material, or developing a new case for the first time or deciding a case on no evidence. In the same case the Supreme Court has said, that "what the Courts of fact were called upon to consider and decide were questions of fact in the light of all relevant evidence." In Deity Pattabhiramaswamy v. S. Hanimayya ( AIR 1959 SC 57 ), also, the Supreme Court observed that it is a finding of fact arrived at on a consideration of all relevant documentary and oral evidence which is conclusive in second appeal. 7. Applying these considerations to the present case, I am of the view, that the failure of the Subordinate Judge to consider and decide whether the parties had fallen out definitely by the 28th February, 1952, and whether in that event, the borrowing of Rs. 7. Applying these considerations to the present case, I am of the view, that the failure of the Subordinate Judge to consider and decide whether the parties had fallen out definitely by the 28th February, 1952, and whether in that event, the borrowing of Rs. 2,250/- would have taken place constitute a substantial error or defect in procedure which may have affected the decision on the merits. I am further of the view, that the failure of the lower court to weigh and appreciate relevant oral evidence is also another error or defect in procedure. The decision may also be deemed to be contrary to law for this reason, within the meaning of S.100(1)(a), as the court was under a misconception as to its powers and duties as an appellate court in weighing oral testimony. 8. In view of the fact, that material evidence has not been considered by the Subordinate Judge, I think the proper course is to set aside his judgment and decree, and send back the case for rehearing and disposal. Ordered accordingly. The costs in the appeal will be the costs in the cause. The court fee paid on the appeal memorandum will be refunded to the appellant.