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Khuraijam Ongbi Thoibisana Devi and Ors. Vs. Akoijam Amubi Singh (deceased by L. R's.) and Ors. (28.04.1982 - GUHC) - Court Judgment

LegalCrystal Citation
Subject;Civil;Limitation
CourtGuwahati High Court
Decided On
Case NumberFirst Appeal No. 9 of 1972
Judge
ActsCode of Civil Procedure (CPC) , 1908 - Sections 11 and 115; Bombay Money-Lenders Act, 1947 - Sections 2(2), 2(9), 10 and 10(1); Evidence Act, 1872 - Sections 68, 69 and 72; Stamp Act, 1899 - Sections 2(5); Limitation Act, 1963 - Sections 2
AppellantKhuraijam Ongbi Thoibisana Devi and Ors.
RespondentAkoijam Amubi Singh (deceased by L. R's.) and Ors.
Appellant AdvocateA. Nilamani Singh, Adv.
Respondent AdvocateR.K. Manisana Singh, Adv. General
DispositionAppeal dismissed
Excerpt:
- - a/1. but as the defendant failed to repay the loan in spite of repeated demands, the suit in question was filed against kulabidhu for realisation of the principal amount of rs. --(1) after the expiry of six months from the date on which this act comes into force, no court shall pass a decree in favour of a money-lender in any suit filed by a money-lender to which this act applies unless the court is satisfied that at the time when the loan or any part thereof to which the suit relates was advanced, the money-lender held a valid licence. ' 13. the rationale in the language of the supreme court lies in the fact that were it to be otherwise 'every litigant against whom an interlocutory order is decided' will be put to the burden of 'running to the higher courts for redress even though..... hansabia, j.1. civil law is a lawyer's paradise. in its labyrinth just cases are also sometimes lost. here is a simple case as to whether the defendant had borrowed a sum of rs. 6,000 from the plaintiff or not; and whether the latter can realise the same from the former through the assistance of the court? but legal coverings have not allowed the kernel to be seen so easily. the law points urged before us are (1) whether the suit was hit by section 10(1) of the bombay money-lenders act, 1946, hereinafter the 'act', which was extended to this union territory by notification dated 4-8-61?; (2) whether any order passed or concession made in the case operated as res judicata or estopped by conduct? and (3) whether section 68 of the evidence act is attracted or not? and if so, whether.....
Judgment:

Hansabia, J.

1. Civil law is a lawyer's paradise. In its labyrinth just cases are also sometimes lost. Here is a simple case as to whether the defendant had borrowed a sum of Rs. 6,000 from the plaintiff or not; and whether the latter can realise the same from the former through the assistance of the Court? But legal coverings have not allowed the kernel to be seen so easily. The law points urged before us are (1) whether the suit was hit by Section 10(1) of the Bombay Money-Lenders Act, 1946, hereinafter the 'Act', which was extended to this Union Territory by notification dated 4-8-61?; (2) whether any order passed or concession made in the case operated as res judicata or estopped by conduct? and (3) whether Section 68 of the Evidence Act is attracted or not? And if so, whether requirement of Section 69 was complied or not?

2. Before adverting to these questions, the relevant facts of the case may be noted. According to plaintiff (whose legal representatives are the respondents), the predecessor-in-interest of the appellants, one Kulabidhu Singh, had borrowed on 31-3-63 a sum of Rs. 6,000. In token of this borrowing, a document was also executed on that day being Ext. A/1. But as the defendant failed to repay the loan in spite of repeated demands, the suit in question was filed against Kulabidhu for realisation of the principal amount of Rs. 6,000 along with the interest of Rs. 3,500 calculated at the stipulated rate of 3 per cent per month. The defendant denied taking of loan and stated that he had not executed any document in this connection.

3. A plea was taken by the defendant by filing a petition on 14-11-68 that the suit was barred by Section 10 of the Act, and so the same be dismissed. The Court ordered to register a miscellaneous case and accordingly Judicial Miscellaneous Case No. 419 of 1968 was started. The plaintiff first took the stand that Section 10 of the Act was not applicable and as this plea had not been taken in the written statement, the same could not be done without amendment of the pleading. On 18-12-68 the learned trial Court passed the following order in the Miscellaneous Case: 'parties present with the counsel. In this petition the defendant-petitioner raised an objection for bringing the suit against the plaintiff-O. P. as barred by Section 10(1), Bombay Money Lenders Act, 1946. The learned counsel for plaintiff-O.P. has withdrawn his objection to the petition of the defendant-petitioner. He wants time for production of moneylenders license already applied for.

Thus time given for the production of license.

Accordingly the petition is disposed of in favour of the defendant-petitioner.

Announced.'

4. The defendant died on 27-2-1969 and his legal representatives filed their written statement on 10-11-1969 in which inter alia a plea was taken that the suit was barred by provisions of the Act. When the question of framing issues on the basis of this pleading was taken up on 5-12-1969, the learned trial Court observed, inter alia, as below :

'In the W. Section the defendants contend that the suit is not maintainable as the alleged deed is not admissible and it is also barred by provision of Bombay Money Lenders Act. As the records show that the deed is impounded Under Section 35 of the Stamp Act and the plaintiff also produced licence as required under the Bombay Money Lenders Act, the question of maintainability of this suit on the point does not arise. On this point issue need not be framed. The issues already framed on 11-6-1968 will serve for the decision of the suit'.

However, after the evidence had been closed and the time for judgment arrived, the learned trial Court felt that there should be an issue about the applicability of the Act and so set down for his decision the following issue also numbered as issue No. 4 :

'Whether the Bombay Money Lenders Act will apply in this suit? If so, its effect? And whether the plaintiff complied with the provisions of Sections 18 and 19 of the Money Lenders Act, 1948?'

It may be stated that apart from the aforesaid issue the following issues had also been framed :

'(1) Did the defendant borrow Rupees 6,000/- from the plaintiff on condition of repayment with interest at the rate of 3% per month by the execution of the deed dated 31-3-1963 in favour of the plaintiff?

(2) Did the defendant further promise for repayment of the loan with interest at the rate of Rs. 2,000/- per month payable on the 10th of each month?

(3) Is the plaintiff entitled to the reliefs as claimed?

(4) Is there any cause of action of the suit?'

5. The learned trial Court arrived at the finding that the defendant had borrowed the amount in question and had promised the repayment at the rate of Rs. 2,000/- per month. As to applicability of the Act, it was stated that though the plaintiff was a money lender under the Act, the borrowing by the defendant being for his contract work, the loan for the same was not covered by the provisions of the Act. Claim for interest was rejected because the learned Subordinate Judge felt that even if the Act applied it would affect the interest because of the provisions in Sections 18 and 19 of the Act. The legal representatives of the original defendant have preferred this appeal.

6. Let us first see to the kernel leaving aside verbal booby-traps and legal claptrap. The fundamental fact to be ascertained is whether the plaintiff had lent a sum of Rs. 6,000/- to the defendant and whether the defendant had executed Ext. A/1. On this aspect, there is the evidence of PWs 1 and 2 on the one side, and DW 1 on the other. PW 1 is the scribe of Ext. A/1 and according to him he had written the same on the request of the deceased defendant Kulabidhu who had signed the same after knowing the contents. A sum of Rupees 6,000/- had then been given by the plaintiff to Kulabidhu and that one Chandrakriti Singh was an attesting witness to this document. PW 2, who is the plaintiff also deposed to the same effect. DW 1, a son of Kulabidhu, denied any borrowing by his father and also stated that the signature in Ext. A/1 which was marked as Ext. A/1(1) was not that of his father.

7. Shri Nilamani Singh for the appellants contends that the evidence on record does not establish the case of any borrowing by the defendant. According to him, a false case was instituted against the defendant because of animosity of the plaintiff against the defendant about which the DW 1 had deposed. He further contends that as Kulabidhu was doing contract work with the aid of his own capital there could have been no occasion for Kulabidhu to go in for any borrowing. As to the animosity, this was not pleaded at all either in the written statements filed by the original defendant or by his legal representatives. No reason for the animosity was also given by DW 1. As to the doing of contract work by Kulabidhu Singh with his own capital as deposed by DW 1, it is sufficient to say that it is common knowledge that people who do work with their own capital also take the assistance of borrowing. This, in any case, is a neutral circumstance. The further submission in this regard is that as Kulabidhu used to sign normally in English as deposed by DW 1 and would appear from the verification of the written statement and other petitions on record, the signature in Ext. A/1 being in Bengali script has to be rejected on this score alone to be that of Kulabidhu. But then DW 1 himself admitted that his father could read and write Manipuri language in Bengali script. As Ext. A/1 is in Bengali script, we do not think if we could hold that Ext A1 (1) is not the signature of Kulabidhu merely because the same is in Bengali script.

8. It is then urged by Shri Nilamani Singh that the evidence of the two PWs about the lending of money by the plaintiff and execution of Ext A/1 is discrepant on material particulars. He refers in the main to these discrepancies : (1) the money was paid according to PW l after the defendant had signed Ext. A/1, whereas this was before, as per PW 2; (2) the money consisted of currency notes in the denominations of Rs 100/-, Rs. 10/- and Rs. 5/- according to PW 1, whereas the evidence of FW 2 is that these were in first two denominate ons; (3) though the statement of PW l is that the money was in the hand of the plaintiff when the document had been written, PW 2 has stated that he went inside his house after the deed hail been prepared to bring the money; and (4) according to PW 1 there were two mats on which the four concerned persons had sat -- two persons occupying one mat each, whereas PW 2 stated that all the four had sat on one mat.

9. These discrepancies are undoubtedly on question of minor details. It has to be remembered that the witnesses deposed in 1971 about the deal which was in 1963. As such some discrepancy in their evidence was rightly characterised by the learned Advocate General, who appeared for the respondents, as 'natural.' Had it been that the PWs. differed on the question whether the defendant was not present when the deed had been written, or at whose behest it was written, or where was it scribed, or who were present at the relevant time or whether the attesting witness was there or not, or if there would have been some difference in their evidence about the amount involved the position would have been definitely different. Even if there would have been discrepancy as to when the attesting witness came and when he signed, we would have held that the evidence lacked consistency and as such it did not inspire confidence But that is not so. The discrepancies which Shri Nilamani Singh has brought to our notice are not such, to our opinion, because of which we would be justified in saying that the two witnesses did not establish the case regarding lending of Rs. 6,000/- by the plaintiff to the defendant, or the execution of Ext. A/1 by the defendant.

10. Thus, justice demands that the lender should get back his money. As the learned trial Court has disallowed the interest, and as there is no cross-objection to that part of the decree, the plaintiff must get back his principal sum of course, if the law does not stand in his way. Before proceeding further, we may say that we have noted almost with horror that interest was visualised @ 3% per month and that too in the year 1963. This greedy and unconscionable act was rightly nipped in the bud and justly disallowed by the learned Subordinate Judge, may be for wrong reason,

11. Let us now see if there is any legal hurdle in realising the principal amount. The first to which we must advert is about the applicability of the Act to the transaction in question and whether it was hit by the Act It should be mentioned at this stage that though the plaintiff had sought for time to produce licence under the provisions of the Act as stated in the order passed on 18-12-1968 in Judicial Misc. Case the one he ultimately produced was for the period from 31-3-1968 to 31-3-1969, as would appear from the licence filed in the Court which at page 23 of File 'C' of the lower Court. To decide the controversy, let us read Section 10 (1) of the Act :

'10. Stay of suits by money-lenders not holding licence.-- (1) After the expiry of six months from the date on which this Act comes into force, no Court shall pass a decree in favour of a money-lender in any suit filed by a money-lender to which this Act applies unless the Court is satisfied that at the time when the loan or any part thereof to which the suit relates was advanced, the money-lender held a valid licence.' (Underlining ours)

Sub-section (2) requires granting of time if the money-lender had not a valid licence when the suit was filed. Sub-section (4) contains a mandate that if the money-lender fails to produce the licence, the Court shall dismiss the suit. As the licence has to be for the period when the loan was taken, and as the licence produced in the present case did not cover that period, it is submitted by Shri Nilamani Singh, that the suit had to be dismissed as required by Sub-section (4). He has also contended that it was not open to the plaintiff on the face of the stand taken by him in the Judicial Misc. Case to contend that the Act was not applicable. The stand taken by the plaintiff then would operate at least as estoppel by conduct, submits the learned counsel. According to the learned Advocate General, however, the plaintiff had then wanted time to produce licence as a measure of precaution, and there cannot be any estoppel against law. His further contention is that if there has to be any estoppel the same would be operative against the appellants inasmuch as in the order passed on 5-12-1969, it had been stated by the Court that the 'maintainability of suit on the iouchstone of the Act did not arise. This would operate as estoppel by record, that is, as res judicata, contends the learned Advocate General.

12. We had a learned address on the question as to whether an order passed during the course of a trial can operate as res judicata in the subsequent stage of the same litigation. Both sides placed reliance on Satyadhyan v. Deorajin, AIR 1960 SC 941. It has been held in this decision that the principle of res judicata applies also as between two stages in the same litigation to this extent that a Court having at an earlier stage decided a matter in one way will not allow the parties to reagitate the matter again at a subsequent stage of the same proceedings. There was however a poser. The same was whether a higher Court at a later stage of the litigation could consider the matter where the lower Court had decided an interlocutory matter in one way and no appeal has been taken therefrom or no appeal lay? It was pointed out in para 21 in this connection that interlocutory orders which have the force of a decree and terminate the proceeding must be distinguished from those which are a step towards the decision of the dispute between the parties by way of a decree or a final order. As to the second type of interlocutory orders, it was stated by referring to Moheshwar Singh v. Bengal Government, (1857-59) 7 Moo Ind App 283; Forbes v. Ameeroonissa, (1863-66) 10 Moo Ind App 340; and Sheonath v. Ramnath, (1863-66) 10 Moo Ind App 413 that such orders could be challenged in an appeal from the final decree or order. (The illustrations to the first type of order were provided by Ram Kripal's case, (1883) 11 Ind App 37; Bani Ram's case, (1883) 11 Ind App 181; and Hook's case. (1921) 48 Ind App 187: (AIR 1921 PC 11). The reason for this as stated in Moheshur Singh is that any other view would be 'detrimental to the expeditious administration of justice', and any different view would have caused 'endless expense and delay.'

13. The rationale in the language of the Supreme Court lies in the fact that were it to be otherwise 'every litigant against whom an interlocutory order is decided' will be put to the burden of 'running to the higher Courts for redress even though it may very well be that though the interlocutory order is against him, the final order will be in his favour. Apart from the unavaoidable delay in the progress of the litigation that such a rule would cause the interests of the other party to the litigation would also suffer.'

14. Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, throws further light on the different kind of interlocutory orders. As stated therein these orders are of various kinds : some are like orders of stay, injunction or receiver, which are designed to preserve the status quo pending the litigation. As they do not impinge upon the legal rights of parties to the litigation nor decide in any manner the merits of the controversy in issue in the suit, the principle of res judicata does not apply to them. De-spite this, repeated application on the same facts would be rejected as an abuse of the process of the Court. There are however other orders which are also interlocutory, but would fall into a different category. These are not directed to maintaining the status quo or to preserve the property pending the final adjudication but are designed to ensure the just smooth, orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an end to the litigation. The case of an application under Order 9, Rule 7 was given as an illustration of this type. It was stated that though the same Court is not finally bound by any order passed under that rule at later stages, and even if the rule of res judicata does not apply to such order, it would not follow that on every subsequent day the petition could be repeated and fresh orders sought.

15. From what has been stated above about the facts of this case, it is clear, that at one stage of the suit the plaintiff had as if conceded that the Act would apply to him and had therefore prayed time to file a licence under the Act. On the same being filed, the Court without examining as to whether the same covered the period in question observed in its order passed on 5-12-1969 that the question of maintainability of the suit because of anything contained in the Act did not arise. Thus, on the one hand we have before Us the conduct of the plaintiff which constituted an estoppel against him as per Shri Nilamani Singh, and 6n the other hand the order passed by the Court, which operated as res judicata according to the learned Advocate General. But as this order and the further observation that there was no necessity to frame an issue regarding maintainability has to be regarded as interlocutory and did not terminate the proceedings, principle of res judicata is not attracted and we do not think if the appellants are debarred from agitating the question of maintainability in this appeal. As there cannot be estoppel against law also, we have thought it fit to examine the question of maintainability on our own.

16. Reference to the provisions of the Act shows that a person becomes a money-lender on his carrying business of money lending. The meaning of 'business of money lending' in Section 2(2) of the Act is the 'business of advancing loan'. The word 'loan' in Section 2(9) of the Act, excludes a loan to a trader except for the purpose of Sections 23 and 25, with which we are not concerned. The word 'trader' includes as per Section 2 (18) a contractor. The learned Advocate General has contended that from the materials on records, specially the evidence of DW 1, it is clear that the defendant was a contractor and so Section 10(1) is not attracted. Shri Nilamani Singh would say that as one swallow would not make a summer, so too taking up of one contract work would not make a person a contractor within the meaning of Section 2(18) of the Act, which has defined the word 'trader' to mean a person who in the regular course of business buys and sells goods or other property. Learned Advocate General would submit that present was not case of doing casual contract work by the defendant, even if one were to regard the requirement of regularity as essential qua a contractor. Reference to the evidence of DW 1 shows that according to him Kulabidhu, his father, was a contractor, which would indicate that as per DW 1 his father was bv profession a contractor. He further stated that his father did contract work with his own capital. He also admitted in cross-examination that his father used to maintain account for his contract works. From all these, we do not entertain any doubt in saying that the defendant was in the business of contract. It is not a case of an unwary witness admitting things, as contended by Shri Singh, DW 1 has been a teacher at least since 1963 and he was aged about 35 years when he was examined. His evidence being that his father used to consult him in all important matters after he attained majority, he was the best person to depose, in his father's absence, about his father's business etc. Then, of the three statements noted above, two were made in examination-in-chief. The averment in Ext. A/1 would also show that this was so. It has been stated therein that the loan had been taken with a view to use the same in contract for supply of ration (food for cattle).' Now, a supply work of a type mentioned in Ext. A/1 cannot be a casual contract. Thus, money lent by the plaintiff to the defendant cannot be said to be a 'loan' within the meaning of Section 2(9) of the Act, Section 10 (1) therefore did not operate. So, the suit cannot be held to be barred by the provisions of the Act.

17. This disposes of the first two contentions raised by Shri Nilamani Singh. The last legal submission is related to the admissibility of Ext. A/1. The same is built-up on the strength of Section 68 of the Evidence Act, which reads :

'68. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence;

XXX XXX XXX'

(Emphasis supplied)

The attesting witness of Ext. A/1 Shri Chandrakriii Singh was alive and was capable of giving evidence at the relevant time. Efforts were also made (really by both the sides) to obtain his evidence. The summons meant for him were returned with the endorsement to the effect that either he was not found or was not available. What had happened was that according to PW 2, Chandra-kriti had left for Assam sometime back and his whereabouts were not known. Queries were made about him from the neighbours and it was learnt that he had left for Assam.

18. This being the factual position, the learned Advocate General has two answers to the contention of Shri Nilamani Singh in this regard. He first states that it could not be said that Ext. A/1 is a document which is 'required by law to be attested.' Secondly, as the attesting witness could not be found, the case is covered by Section 69 of the Evidence Act, inasmuch as the attestation by Chandrakriti has been proved by PWs 1 and 2, who have also testified about the signature of the defendant. Shri Nilamani Singh counters by contending that it could not be said that Chandrakriti could not be found : and that Ext. A/1 would not have been regarded as a bond unless it would have been attested by a witness and as such it did require attestation to become a bond.

19. Let it first be seen if Section 68 is at all attracted. The answer to this question rests on the decision whether Ext. A/1 is a document required by law to be attested. As Ext. A/1 was held to be a bond in an earlier proceeding of the case relating to its impounding (which order was affirmed by the learned Judicial Commissioner) the learned Advocate General has not contested that Ext. A/1 is not a bond. It was however so regarded because of the definition of 'bond' in Section 2(5)(b) of the Indian Stamp Act which reads :

'2. Definitions.-- In this Act, unless there is something repugnant in the subject or context,--

XXX XXX XXX

(5) Bond.-- 'Bond' includes--

(a) xxx xxx

(b) any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and

XXX XXX XXX '

But this is not only the definition of

bond. The learned Advocate General has

referred to the definition of this word

in Section 2(d) of the Limitation Act. which

has defined it thus :

'(d) 'bond' includes any instrument whereby a person obligee himself to pay money to another, on condition that the obligation shall be void if specified act is performed, or is not performed, as the case may be;'

This definition is just the same as in Section 2 of the Stamp Act. It is, therefore, contended that a 'bond' is not such an instrument or document which has to be attested for all purposes, in contrast to say, a mortgage, gift or unprivileged will, which for their validity require attestation as would appear from Sections 59 and 123 of the Transfer of Property Act and Section 63(c) of the Indian Succession Act.

20. As the Evidence Act is meant not only for the types of bonds covered by Section 2(5)(b) or (c) of the Indian Stamp Act but for other types of bonds also, it is urged by learned Advocate General that it cannot be said that for the purpose of Section 68, a bond is type of document for which the requirement of this section must be fulfilled. Reference is made in this connection to Motiram v. Ratna Mukundi, AIR 1953 Madh Bha 158, where the learned single Judge took the view that the bond was not a document required by law to be attested as contemplated by Section 68. Evidence Act. In coming to this conclusion reference was made to Ram Chandra v. Jhibal, AIR 1940 Nag 240 and Ramdat Ram v. Lalta Prasad, AIR 1948 Oudh 258. It was pointed in both the decisions that the definition of 'bond' in the Stamp Act or for that matter in the Limitation Act is not exhaustive as would appear from the word 'includes' with whose aid this word has been defined in both these enactments, So it was held that the definition given in these Acts cannot be taken to apply generally to the term 'bond' as distinguished from mortgages, gifts and wills about which the statutes in question have specifically spoken about attestation. It was therefore concluded in Ramachandra that so far as 'bond' is concerned, it is Section 72 of the Evidence Act, which applies which has stated that an attested document not required by law to be attested may be proved as if it was unattested.

21. With respect, we feel that there is much force in the reasoning contained in the above judgments. What has led us to hold that in case of a 'bond' Section 68 would not operate is, apart from what has been stated in the aforesaid decisions, the language of Section 68 itself. This section applies if a document is required by law to be attested. Now if we substitute the word 'bond' for the word 'document' in the section fas we are dealing with bond) we get the answer, It may be that the bond with which we are concerned is attested, or that, but for attestation the document would not have been held to be a 'bond'. Despite Ext. A/1 being a bond, Section 68 is not attracted with all force, because for it to apply each and every document of the type with which the Court is concerned must be required to be attested to be valid document. This follows from the word 'a' in Section 68 before the word 'document'. Had the adjective been 'the' different conclusion would have followed, and in that case applicability of Section 68 would have depended on the particular document before the Court. It cannot however be said about a bond that it must be attested, as is apparent from Section 2(5)(a) of the Stamp Act and Section 2(d) of the Limitation Act. As the Evidence Act is a general statute. its applicability cannot be made to depend upon a particular statute, and that too on a particular clause in the statute.

22. We therefore hold that Section 68 did not operate in the present case. According to learned Advocate General even if it had its application, the instant case is covered by Section 69 inasmuch as the attesting witness in question could not be found, and other requirements of Section 69 were duly fulfilled. Shri Nilamani Singh contended that requirements of Section 69 werp not complied with as it is not enough to satisfy that requirement to say that whereabouts of the attesting witness were not known, and for that matter mere taking out of summons is not sufficient in this regard. He has referred to Amal Sankar v. Dacca Co-operative Housing Society. AIR 1945 Cal 350 and Shahzadi Begum v. Mahomed Qasim, AIR 1928 Pat 356 in support of his latter submission. These are two Bench decisions which sav that before a party relies upon Section 69. he must ask the Court to exhaust all processes as laid down in Order 16. Rule 10. That provision of the C.P.C. deals with the procedure where witness fails to comply with summons. Sub-rule (1) speaks of examining the serving officer on oath apparently to get satisfied about proper service of summons, or the cause of non-service. Sub-rule (2) empowers issue of proclamation requiring the person to attend to give evidence if the person 'has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service.' Sub-rule (3) empowers the Court to issue a warrant in lieu of or at the time of issuing aforesaid proclamation. The reading of Rule 10 makes it clear that for the two modes to get attracted the person who was required to attend the Court or to produce a document must have either avoided doing so even on receipt of the summons or must have intentionally avoided the service of summons. The present is a case in which none of the alternatives is attracted inasmuch as the summons was admittedly not served on Chandrakriti, and it is not the case of the parties that he had intentionally avoided service of the summons. Therefore what has been stated in the aforesaid decisions cannot apply to the facts of this case, because, if the conditions necessary for operation of Rule 10 are absent, the question of exhausting all processes required by Sub-rules (2) and (3) does not arise.

23. Shri Nilamani Singh has fired another shot in the arm. By referring to Deorao v. Dhondirao. AIR 1928 Nag 244, it is urged by the learned counsel that as the plaintiff had not examined the persons from whom he had made enquiries about Chandrakriti, the requirement of section cannot be said to have been fulfilled. We are reminded that Section 69 is attracted when a witness cannot be found, and not merely when he has not been found. Here again, the learned Advocate General has a convincing answer and the same is that apart from what has been deposed by the plaintiff about the enquiry made from the neighbours, the plaintiff did duly take out summons, and on occasions more than once, which were returned with the endorsements inter alia saying that he was not available. Indeed, as both the parties had wanted the presence of Chandrakriti, it has to be held that the present was a case where Chandrakriti could not be found to give his evidence.

24. This all what Shri Nilamani Singh has to say--really there is nothing more which anybody else could have said. As we are not satisfied if any of the aforesaid legal hurdles can stand in between the plaintiff and realisation of the principal sum of Rs. 6,000/-, we dismiss the appeal by affirming the judgment and decree of the learned trial Court. The appellants would pay the costs of both the Courts.

S.M. Ali, J.

25. I agree.


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