Ross, J.This is an application by the plaintiff who brought a suit in the Small Cause Court on a hand-note. The learned Judge dismissed the suit. He held that the thumb-mark on the hand-note was so indistinct that it had not been possible to have it compared even on photographic enlargement and had that there was no reason to think that the thumb-mark on it was that of the defendant and that the defendants explanation that he had been induced by the malik long ago to give on a blank paper his thumb-mark would not lead to an inference that the hand-note in suit had that thumb-impression.

2. In my opinion the learned Judge was in error in looking at the case in this way. It does not appear from the order-sheet that any attempt was made to have the thumb-impression examined or compared with that of the defendant. But apart from this the defendant in his written statement, while denying that he had signed or made thumb-impression upon any hand note, admitted that he had put his thumb-impression on a blank piece of paper upon which it was intended that a kabuliyat should be written out and that this may be the thumb-impression and paper which had been utilized for this hand-note.

3. This is a clear admission that the hand note on which the suit is brought bears the thumb-imoression of the defendant, otherwise the statement about the blank piece of paper and the hand-note is wholly irrelevant.

4. In these circumstances the burden of proof was on the defence to explain how this document bearing the defendants thumb-impression came into existence. There has therefore not been a proper trial of this suit and the decree must be set aside and the suit remanded for retrial. Costs of this application, hearing-fee one gold mohur, will depend on the final decree, and will be disposed of by the Court-below.