1. This is a plaintiff's appeal and is directed against the judgment and decree dated 15-12-1971 passed by the learned Civil Judge, Gadag, in R. A. No. 50 of 1971 on his file reversing the judgment and decree dated 15-1-1960 passed by the learned Munsiff, Laxmeshwar, in L. C. Civil Suit No. 24 of 1955 on his file.
2. The plaintiff instituted a suit on 6-6-1955 against three defendants praying for a decree against them for rendering accounts in respect of the transactions carried on through tippan accounts and for recovering the amount that may be found due on taking accounts. It is the case of the plaintiff that his father Shivappa Yelamali was running a grocery shop at Laxmeshwar. His father was running the business till his death on 12-12-1948. The present plaintiff is the elder of the two sons. He is at present carrying on the business of the shop. At the time of the death of the plaintiff's father, plaintiff was a minor and his mother-third defendant-was his guardian. The first defendant in the suit is the maternal uncle of the plaintiff. During the minority of the plaintiff, the first defendant was managing the business of the grocery shop. The second defendant was engaged by his father as a clerk in the shop and even after the death of Shivappa, second defendant continued as a clerk in the shop. After the death of Shivappa, the first defendant was managing the shop. Third defendant was the guardian of the minor plaintiff being his mother. Thus, the plaintiff has sought accounts from the defendants.
3. First defendant by his written statement affirmed that he had no connection with the shop of the plaintiff. Third defendant similarly contended that she had nothing to do with the management of the shop. The second defendant contended that he was only a clerk in the shop; that the shop was run under the supervision of the third defendant who was the guardian of the minor plaintiff; that the collections from the shop were being handed over to her every day and since he was only a clerk in the shop he was not liable to render accounts. The suit was not maintainable against him. He also contended that the suit was barred by limitation. He was not in possession of any documents or books of accounts and that the plaintiff was in possession of them all.
4. On these pleadings the following issues were framed by the trial Court:--
(1) Whether the plaintiff proves that defendant No. 1 was the manager of the suit shop?
(2) Whether the plaintiff proves that tippan books were maintained in respect of transactions of plaintiff's shop in Jaggery, tea, sugar, areca nut etc.?
(3) what is found due on accounts
(4) Whether the plaintiff's brother is a necessary party to the suit?
(5) What is due
(6) What order
5. After these issues were framed the second defendant requested the Court to frame two more issues on the basis of his pleadings at issues Nos. 7 and 8. They were:
(7) Whether the suit claim is in time
(8) Whether plaintiff proves that defendant No. 2 was liable to give accounts to him as alleged
6. The learned Civil Judge, Junior Division recorded the evidence and answered issue No. 1 in the negative. Under issue No. 2 he held that tippan books were maintained; held under issue No. 4 in the negative and issues Nos. 7 and 8 in the affirmative and in that view, he passed a preliminary decree against the second defendant only to render accounts within six months. The suit against defendants 1 and 3 was dismissed. Aggrieved by the said judgment and decree dated 15-1-1960 the second defendant went up in appeal and the appeal was registered as Civil Appeal No. 61 of 1960. The learned District Judge on hearing the appeal dismissed the appeal with costs by his judgment dated 17-3-1962. Aggrieved by the said judgment and decree the second defendant preferred R. S. A. Before this Court which was registered at R. S. A. No. 39 of 1962 and this Court by its judgment and decree dated 26th August, 1965 allowed the appeal and remitted the case back to the lower appellate Court for disposal according to law in the light of the observations made in the course of the judgment.
7. This Court in the course of its remand judgment observed:--
'It is not sufficient for the lower appellate Court to simply say that the trial Court has discussed the questions in paras 10 to 17. As the first appellate Court, it is its duty to examine the evidence independently and discuss the same. Merely stating that the trial Court has discussed the points of law is not sufficient. It has not even stated as to what are the points of law arising in the case and what are the rival contentions urged on the points by the plaintiff and 2nd defendant. There is absolutely no discussion or mention of the points of law involved in the case nor any independent decision of its own.'
'Sri Karanth is also right in saying that the lower appellate Court has not considered the important question, whether the plaintiff could be permitted to depart from the pleadings in the case and take up the stand that defendant 2 was not a clerk but was the person in sole management of the shop, and as an agent was bound to render accounts to him. There is no discussion whatsoever on this aspect of the case in the order of the lower appellate Court though the trial Court has dealt elaborately with the question.'
'Then again, with regard to the point raised, whether the suit is maintainable or not, there is no discussion at all in the order of the lower appellate Court........'
Then again, as contended by Sri Karanth, the courts below have not considered the question as to the period during which the appellant should render accounts to the plaintiff.'
8. On these grounds the appeal was allowed and remitted to the lower appellate Court for disposal according to law. Thereafter, the appeal was heard by Civil Judge, Gadag. The appeal was registered as R. A. No. 50 of 1971 and the learned Civil Judge in the course of his judgment raised the following points for decision:-
(1) Whether the second defendant acted as a person in sole management of the business of the plaintiff's shop after the death of Shivappa Yelamali till the date of his leaving service
(2) Whether the 2nd defendant has acted as an agent or trustee in respect of the business of the plaintiff's shop subsequent to the death of Shivappa Yelamali?
(3) Whether the second defendant is liable to give accounts to the plaintiff
(4) If the second defendant is liable to render accounts, for what period is he liable to render accounts
(5) Whether the suit by the plaintiff alone is not maintainable without impleading his younger brother as a party to the suit
(6) Whether the judgment and decree of the trial Court call for any interference
9. On hearing the appeal, the learned Civil Judge answered points Nos. 1, 2 and 3 in the negative. In that view he held point No. 4 did not arise for consideration. He further held that the suit was maintainable even without adding the younger brother of the plaintiff and finally allowed the appeal under point No. 6 and set aside the judgment and decree of the trial Court and directed that the suit against the second defendant be dismissed. Aggrieved by the said judgment and decree, the plaintiff has come up in second appeal before this Court.
10. The learned counsel appearing for the appellant vehemently contended that the first appellate court was not justified in coming to the conclusion that the plaintiff shifted his stand in his evidence and that therefore the suit against the second defendant was not maintainable. He further submitted that the learned Civil Judge ought to have appreciated the substance of the plaint instead of trying to construe the averments strictly. If he had done so, he submitted, it was obvious that the plaintiff had made a claim against the second defendant also and as such the trial Court was justified in holding that the second defendant was liable to render accounts, he being the person who has carried out the transactions on his own as an employee of the plaintiff. Hence, he submitted that the appeal should be allowed and the judgment and decree of the first appellate court be set aside, restoring the judgment and decree of the trial Court.
11. As against that, the learned counsel for the second defendant-respondent, vehemently argued supporting the reasonings and findings of the first appellate Court.
12. The points, therefore, that arise for my consideration in this appeal are:
(1) Whether the first appellate Court was justified in coming to the conclusion that there was material variance between pleading and proof in the course of trial of the present suit
(2) Whether the lower appellate Court was justified in holding that the respondent-second defendant was not liable to render accounts
13. In order to appreciate the contentions raised before me, it is necessary to advert to the pleadings of the parties. The plaint averments are correctly summarised by the trial Court in its judgment which read:
'Shivappa Yalamali started a grocery shop and managed and conducted the said shop till his death on 12-12-1948. The deceased Shivappa has left behind two sons viz., the plaintiff and Eshwarappa. The plaintiff being the eldest son is now the wahivatdar of the shop styled in his name after his father's death. Day book and ledger are maintained in respect of the day to day transactions of the shop and cash balances are struck every day. The plaintiff was a minor when his father died and was prosecuting his studies in Dharwar and later in Bangalore. Then the 3rd defendant being the mother of the plaintiff was the guardian of the plaintiff. The 1st defendant is the son of Gurushanthappa Dandur's brother. Gurushanthappa Dandur is the grandfather of the plaintiff. The 1st defendant who was the manager or wahivatdar of R. V. Dandur and brothers Byadagi was managing the plaintiff's shop. The 2nd defendant was a clerk in the plaintiff's shop and was purchasing and selling goods and looking after the correspondence of the plaintiff's shop. The 1st defendant used to supervise the plaintiff's shop either personally or through correspondence. From the funds of the shop the defendants Nos. 1 and 2 have made transactions and in that behalf there are no entries in the regularly kept accounts of the plaintiff's shop. The defendants Nos. 1 and 2 have maintained tippani books and made transactions and the 2nd defendant has made the entries in the tippan books and defendants are liable to account for the amounts due to the plaintiff's shop in respect of transactions covered in tippan books. The defendants Nos. 1 to 3 have colluded with intent to defraud the plaintiff and have not accounted in the regularly maintained accounts of the shops in respect of the transactions in the tippan books. The transactions in the tippan books pertain to tea, jaggery, sugar, coffee and arecanut. Defendants 1 and 2 have stolen some of the tippan books of the plaintiff's shop. The 2nd defendant has given up service under plaintiff and set up independent business..........'
14. On these averments, the plaintiff has sought accounts from defendants. Defendant No. 1 and defendant No. 3 by their written statements denied any liability. According to them, they did not participate, in any way, in the business of the shop. The second defendant by his written statement affirmed that he was a clerk in the said shop. Plaintiff's deceased father Shivappa started the grocery shop in 1942 and Shivappa died in 1948 and after the death of Shivappa third defendant-the guardian of the plaintiff continued the shop. The second defendant continued as a clerk. He was working and maintaining accounts under the directions of deceased Shivappa and after his death under the direction of the plaintiff and the third defendant. Account books and cash belonging to the shop used to be in the custody to the plaintiff and the third defendant. There was another clerk in the shop. He had no liability to render accounts. He gave up service under plaintiff when plaintiff himself started managing his shop. Plaintiff was in possession of all books of account and tippan books. Thus, he denied his liability to render accounts.
15. As already stated, on the basis of these pleadings, issues Nos. 1 to 6 were framed by the trial Court. Thereafter, second defendant got raised two specific issues viz., issues 7 and 8. He wanted to make sure that there was no liability on him as he contended in paras 6 and 7 of his written statement that he was merely a clerk who worked under the directions of plaintiff and third defendant and that he was not liable to render accounts. He had further raised a contention that the suit claim was barred by time and he got that issue also raised.
16. During the evidence, plaintiff practically gave up his claim against defendants 1 and 3 and attempted to make the second defendant liable. Second defendant in his evidence affirmed his averments in the written statement and stated that he was a mere clerk and that he was everyday handing over cash and books of accounts to the 'Sawkar'.
17. The trial Court failed to consider specifically the aspect of variance of evidence from the pleading of the plaintiff; the lower appellate court has however held that since in the plaint itself, second defendant was described as a mere clerk, the affairs of the shop being managed by the first and third defendants, there was no liability on second defendant to render accounts. In that view, the first appellate court held that the trial court was not justified in allowing the plaintiff to shift his ground and claim a relief which was not founded in the plaint averments. It is that finding which is attacked before me.
18. Sri Gunjal, learned counsel appearing for the appellant, no doubt pressed on me that the plaint averments should be liberally construed and we should look to the substance of the averments rather than its form. There cannot be any dispute on that proposition. In fact, the Supreme Court of India in the case of Katikara Chintamani Dora v. Guatreddi Annamanaidu : 2SCR655 of the judgment thus:--
'In construing a pleading or a like petition in this country, the Court should not look merely to its form, or pick out from it isolated words or sentences; it must read the petition as a whole, gather the real intention of the party and reach at the substance of the matter.'
19. I was taken through the plaint averments to find out the real substance of the averments. It becomes clear that the plaintiff has clearly affirmed in the plaint that second defendant-the present respondent-was a clerk in the shop under his father and he continued to serve as a clerk in the shop even after the death of his father and it was the first defendant in the suit, who was his relative on the maternal side, who was managing the shop. Third defendant was his mother and guardian. The plaintiff has further averred in the plaintiff defendants 1 and 3 colluded with intent to defraud the plaintiff and did not regularly maintain accounts of the shop transactions mentioned in the tippan books. Thus, there cannot be any manner of doubt that the plaintiff has made out a very definite case in the plaint that the second defendant-the present respondent-is only a clerk who was taking his orders from first defendant. He was writing books of account, purchasing articles and selling them under the supervision of first defendant. First defendant was managing the affairs of the shop. That being so, there cannot be any manner of doubt that plaintiff has in no uncertain terms described the role played by the second defendant with regard to the transactions in the shop. It is on that basis that the learned Civil Judge, the first appellate Court, has come to the conclusion that there is no liability on the part of the present respondent, the original second defendant, to render accounts to the plaintiff, the present appellant.
20. It is well settled that the following facts must exist before imposing an obligation to account:--
(1) The person upon whom such an obligation is sought to be imposed (the obligor) must have received some property not his own.
(2) The person seeking to impose the obligation (the obligee) must be the owner of the property in respect of which the obligation is sought to be imposed.
(3) The obligor must not have received the property as mere bailee.
(4) The obligor must have received it into his possession and control.
(5) There must be a fiduciary relation between the obligee and the obligor, or in other words there must be privity between them.
All these conditions exist between plaintiff and the first defendant and third defendant as made out in the plaint. They did not exist between plaintiff and the second defendant as made out in the plaint.
21. Thus, it is manifest that the cause of action made out in the plaint would fix the liability clearly against the original defendants 1 and 3 and not against defendant No. 2 and yet the learned Munsiff who tried the suit fixes the liability on defendant No. 2 on the basis of evidence of the plaintiff which was adduced before the trial Court. The first appellate court has held that the learned Munsiff was not justified in doing so and that finding is challenged before me.
22. It is well established, the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Plaintiff wants to shift his ground. For that the only course open to him is to seek an amendment of the plaint and without such amendment a court is not justified in granting a relief on a ground which is not made out in the plaint.
23. In the instant case, I have pointed out above that the plaintiff made out a positive case of liability against defendants 1 and 3 describing defendant No. 2 as a mere clerk who was working under the supervision of defendant No. 1. In the course of the trial he has not sought amendment of his plaint even after defendants 1 and 3 filed the written statements making defendant No. 2 liable. Even before this Court no amendment was sought.
24. The learned counsel for the appellant, however, submitted that the evidence of the plaintiff would justify the decree of the trial court.
25. It is needless for me to point out that the court is not justified in looking into the evidence which is de hors the scope of pleading. It is laid down in the case of Kanda v. Waghu (AIR 1950 PC 68) that it is an absolute necessity that the determination in a cause should be founded upon a case to be found in the pleadings or involved in or consistent with the case thereby made.
26. Again in an earlier decision in the case of Siddik Mahomed Shah v. Mst. Saran the Privy Council has ruled that the defendant is not entitled to lead evidence in support of a case not set up in his written statement.
27. Explaining the observations, the Supreme Court of India, in the case of Nagubai Ammal v. B. Sharma Rao : 1SCR451 has stated, in para 12 of its judgment thus:--
'Reliance was placed on the observations of Lord Dunedin in Siddik Mahomed Shah v. Mt. Saran that no amount of evidence can be looked into upon a plea which was never put forward.
The true scope of this rule is that evidence let in on issues on which the parties actually went to trial should not be made the foundation for decision of another and different issue, which was not present to the minds of the parties and on which they had no opportunity of adducing evidence. But that rule has no application to a case where parties go to trial with knowledge that a particular question is in issue, though no specific issue has been framed thereon, and adduce evidence relating thereto'.
28. The learned counsel for the appellant vehemently submitted that thought it was true that in the plaint there was no specific allegation made against defendant No. 2 as agent or the man in sole charge of the shop, there was an issue framed in the suit at issue No. 7 at the instance of defendant No. 2 himself which entitled the plaintiff to adduce evidence against defendant No. 2 to make him liable as an agent. In other words, he submitted that the parties were aware of the case on which they went to trial.
29. Issue No. 8, no doubt, reads-Whether plaintiff proves that defendant No. 2 was liable to give accounts to him as alleged? It was this issue that was pressed into service by the learned counsel appearing for the appellant.
30. The argument was met by the learned counsel for the respondent by inviting my attention to the application given by the second defendant for getting the issue framed. Therein, it is specifically stated that in the written statement, the second defendant has denied his liability to render accounts on the footing that he was only a clerk and it was on that footing that he sought an issue which was framed as issue No. 8, that it is so is made clear by the words in the issue 'as alleged'. Nothing more could be read in this issue. The issue pertains to pleadings and not to the case which the plaintiff has subsequently made out. Hence, it cannot be said by any stretch of imagination that second defendant went to trial with the full knowledge that plaintiff is going to shift his stand in the evidence and give up defendants 1 and 3 and fix the entire liability on second defendant changing his stand from the averments in the pleadings. Hence, I am constrained to hold that there is no substance in the submission made by the learned counsel appearing for the appellant that second defendant went to trial with the full knowledge of the case that plaintiff has to make out in his evidence at variance with his pleading. That being so, it is obvious that the trial court was not justified in looking into the evidence which was at variance with pleading. The trial court was not justified in founding a claim for the plaintiff which had no basis in the pleading.
31. My view finds support in the decision of this court in the case of Union of India v. Commercial Union Assurance Co, ILR (1975) Kant 96.
32. Thus, considering the case, in the light of the arguments submitted before me, I am constrained to agree with the finding of the first appellate court that the plaintiff has shifted his ground in the course of his evidence without seeking an amendment of the plaint and that therefore the evidence adduced by him should not be made the foundation for granting a relief to him at variance with the cause of action made out by the plaintiff in his plaint. If that be so, it becomes obvious that this appeal has no merits and is liable to be dismissed.
33. In the result, I dismiss the appeal as devoid of merits. In the peculiar facts and circumstances of this case, I make no order as to costs.
34. Appeal dismissed.