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Pangoti Mangarao Vs. Chinnadi Kishan Rao - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberLetter Patent Appeal No. 135 of 1960 and C.M.P. No. 982 of 1962
Judge
Reported inAIR1965AP98
ActsCode of Civil Procedure (CPC), 1908 - Sections 100 and 151 - Orders 6 and 7, Rules 7 and 17; Indian Contract Act, 1872 - Sections 43; Partnership Act, 1932 - Sections 8 and 42; Evidence Act, 1872 - Sections 101
AppellantPangoti Mangarao
RespondentChinnadi Kishan Rao
Appellant AdvocateB.S. Palnitkar, Adv.
Respondent AdvocateK. Madhava, Adv.
Excerpt:
.....contested by the present plaintiff as well as the defendants, inter alia, on the defence that the suit agreement was not executed by them. having been unsuccessful in obtaining the required relief in the first appeal before the then sadar adalat court, he carried a further appeal to the high court which set aside the decree by its judgment dated 20th march 1955 and directed an enquiry into the question as to whether the plaintiff had any cause of action. (4) the trial court dismissed the suit holding that the suit was not maintainable for the reasons that there was not proof that the defendants had enjoyed the benefits of the agreement referred to above along with the plaintiff, that the plaintiff took the entire liability on his own shoulders, secondly that there being no joint decree..........contested by the present plaintiff as well as the defendants, inter alia, on the defence that the suit agreement was not executed by them. it is unnecessary to follow the career of that litigation except to state that ultimately the erstwhile high court of hyderabad, before whom the matter went up in second appeal, held that the agreement was executed by all the four parties i.e., the present plaintiff and defendants and the plaintiff's claim was enforceable. however, a decree was given only against the present plaintiff and no relief was granted against the other defendants as the plaintiff therein had not carried any appeal against the judgment of the trial court dismissing the suit against them. (3) the present plaintiff then laid the action giving rise to this appeal in the court of.....
Judgment:

Chandra Reddy, C.J.

(1) This appeal filed by the 2nd defendant in O. S. No. 11/1 of 1945, Sub Court, Karimnagar, under Clause 15 of the Letters Patent is directed against the judgment of Srinivasachari J. in Appeal No. 495 of 1957.

(2) The essential facts may be shortly stated as follows: One Pingle Venkatarama Reddy, who had an abkari contract, entered into an agreement with the present plaintiff and defendants 1 to 3 under which a sublease of that contract was obtained by the latter as evidenced by a document marked as Ex. 1. On the basis of this agreement, Venkatarama Reddy filed a suit for the recovery of a sum of Rs. 8658-8-0 with interest thereon as against the plaintiff and the defendants herein. This claim was contested by the present plaintiff as well as the defendants, inter alia, on the defence that the suit agreement was not executed by them. It is unnecessary to follow the career of that litigation except to state that ultimately the erstwhile High Court of Hyderabad, before whom the matter went up in second appeal, held that the agreement was executed by all the four parties i.e., the present plaintiff and defendants and the plaintiff's claim was enforceable. However, a decree was given only against the present plaintiff and no relief was granted against the other defendants as the plaintiff therein had not carried any appeal against the judgment of the trial court dismissing the suit against them.

(3) The present plaintiff then laid the action giving rise to this appeal in the court of the Subordinate Judge, Karimnagar, against the defendants for contribution of their share of the amount of the decree passed against him. Originally, the 2nd defendant remained ex parte; the suit was defended only by defendants 1 and 3 on the plea that they were not liable to contribute the responsibility to discharge the debt in question resting only on the plaintiff. A preliminary issue was raised as to whether the plaintiff had a cause of action against the defendants and as to whether the suit was liable to be dismissed in limine. The trial court held in favour of the defendants and rejected the plaint on the ground that there was no cause of action as against the defendants. Having been unsuccessful in obtaining the required relief in the first appeal before the then Sadar Adalat Court, he carried a further appeal to the High Court which set aside the decree by its judgment dated 20th March 1955 and directed an enquiry into the question as to whether the plaintiff had any cause of action. When the matter went back to the trial court as a result of this remand, a written statement was filed by the 2nd defendant urging, inter alia, that, inasmuch as the plaintiff had not paid the amount due under the decree until the date of the institution of a suit, he had no cause of action, which could form the basis of a suit and the suit was therefore liable to be dismissed. Consequent upon this plea, the plaintiff was obliged to file a rejoinder stating that he had paid the decree-holder the amount and as such he had a cause of action against the defendants.

(4) The trial Court dismissed the suit holding that the suit was not maintainable for the reasons that there was not proof that the defendants had enjoyed the benefits of the agreement referred to above along with the plaintiff, that the plaintiff took the entire liability on his own shoulders, secondly that there being no joint decree against him and defendants 1 and 3 and the suit having been based on the original agreement executed by the plaintiff and defendants executed by the plaintiff and defendants 1 to 3, it was barred by time and lastly that the plaintiff had not established that he had paid that amount in respect of which contribution was sought. The plaintiff, dissatisfied with this decision, presented Appeal No. 495 of 1957 in this Court.

(5) Srinivaschari J., who heard the appeal, disagreed with these conclusions, accepted the appeal and decreed the suit as prayed for. In this view of the learned Judge on all these points is assailed on various grounds.

(6) The first point presented on behalf of the appellant is that the material on record does not warrant the opinion that the defendants joined the execution of the agreement in favour of Venkatarama Reddy and that they participated in that business. We are unable to give any weight to this contention. It may be first mentioned here that the trial court found that the document was executed by the plaintiff as well as by the defendants. Further, quite apart from the finding of the High Court of Hyderabad in the earlier proceedings that this instrument was found to have been by all these parties, there was sufficient evidence to substantiate this findings in the shape of the testimony of P. Ws. 1 to 4, which, in our opinion, has to be believed in preference to that of the defendants' witnesses. No valid reasons are adduced as to why that finding should be disturbed. We will therefore proceed on the assumption that all the defendants entered into the agreement covered by Ex. 1.

(7) In dealing with the second branch of the contention, it must be stated, at the outset, that it was not raised by the appellant in this form. What was alleged in this behalf was that the Kabuliyath was not executed by him and that he had not four anna share or any share in the business. It was not his case that, even if he was a party to that agreement, he did not take part in the business. Moreover, when once it is held that the plaintiff and the defendants had jointly come to an agreement with Venkataramareddy, it is for this defendant to make out a case of non-participation in the business. Again, it appears from the account books maintained by Venkatarama Reddy, which were produced in court, and which were examined by the Commissioner, that a joint account was opened in the names of all the defendants. Besides this circumstance, the oral evidence led by the plaintiff, which is of an acceptable character, lends countenance to the theory that the business was carried on by all of them jointly. There is, therefore, no ground to differ from the learned Judge on this question.

(8) Another contention advanced on behalf of the appellant was that, assuming that the parties formed into a partnership for working out the sub-lease, the plaintiff mis-conceived his remedy. If the parties constituted themselves into a partnership for doing business and if a partner had paid any amount in excess of his share in the joint debt, he could only agitate his rights in a suit for partnership and not by instituting a suit of this kind. This point also lacks substance. For one thing, this was not raised in written statement and as such the parties did not join issue on this question nor was an issue struck. There was no evidence on record to show that the partnership continued even after the efflux of the sub-lease which was only for a period of one year. The partnership does not appear to have subsisted thereafter. Obviously enough, the partnership was formed only for a single venture. We are not, therefore, satisfied that this contention is admissible. In our opinion, it was rightly rejected by our learned brother.

(9) There remains the point whether the plaintiff had satisfied the decree and whether he could get any relief in the suit without discharging the debt before the institution of the suit. The question falls under two heads. One is whether the plaintiff had established that he had discharged the common burden and the other is whether he could claim contribution, if he had discharged the liability subsequent to the institution of the suit and not earlier.

(10) The first branch does not present much of difficulty. Initially, the suit was based on a decree obtained by Venkatarama Reddy against the plaintiff. He had not discharged the joint debt due by the four promisors. There can be little doubt that the mere passing of a decree against him would not confer a right on him to sue the defendants for contribution. In order to attract the obligation of a co-promisor to contribute towards the joint debt, it must be shown that he had paid off that decree. In this case, there is not difficulty in finding that the plaintiff did satisfy the decree granted against him. It is beyond dispute that full satisfaction of the decree was recorded in the execution levied by the said Venkatarama Reddy. A certified copy of the execution proceedings would bear out the case of the plaintiff that full satisfaction of the decree was entered on the strength of the statement made by the agent of the judgment-debtor that, as no amount was due under the decree, the execution proceedings should be closed. There is not reason why the decree-holder should have full satisfaction recorded without receiving the amount due to him. There was no allegation that this was brought about by collusion between the decree-holder and the judgment-debtor. It is also worthy of note that in the written statement filed by the appellant all that he stated was that the plaintiff had not paid the amount due under the said decree till the date of the institution of the suit, and that therefore the suit should fail. Be that as it may, there is no room for doubt in this case that the plaintiff had discharged the joint liability and could therefore seek contribution from the defendants who are co-promisors within the terms of section 43 of the Indian Contract Act.

(11) We could not also accede to the proposition that the fact that there is not joint decree against defendants absolves them from all liability. The defendants, who are jointly responsible for the discharge of the debt due to Venkatarama Reddy, are liable to contribute and cannot escape liability notwithstanding their having been exonerated in the prior proceedings.

This is the principle underlying Abraham Servai v. Raphial Muthirian, ILR 39 Mad 288 : (AIR 1915 Mad 675).

(12) The more substantial question for consideration is whether the plaintiff should be afforded relief in the suit based upon a cause of action not subsisting at the time of the institution of the suit but which accrued subsequently. As already remarked, the present suit was founded upon the judgment obtained against him and that he made the payment subsequently. It is beyond the pale of controversy that a suit must be tried in all its stages on the cause of action that had arisen before the institution of the suit. This basic principle cannot be ignored in the decision of the question whether a suit should be decreed or not. However, Courts are not precluded from taking cognizance of facts that occur since the laying of the action and granting relief to the parties on the basic of the altered situation, under exceptional circumstances. This is an inherent power which a Court is required to exercise if it is conceived to advance the cause of justice. The power to give adequate relief to suitors in suitable cases in view of the changed circumstances after the filing of the suit cannot, therefore, be contested. This power should be exercised if it tends to shorten litigation and best subserves the ends of justice.

(13) The above doctrine has been recognised in several decided cases.

In Thimmayya v. Siddappa, 75 Ind Cas 112 : (AIR 1925 Mad 63), a Division Bench of the Madras High Court decided that even though on the date of the suit the plaintiff had not title to the property in dispute, the suit could be decreed if he became entitled to it after the filing of the suit and before the case was disposed of.

(14) To a like effect is the principle enunciated by another Division Bench of the Madras High Court in Subbaraya Chetty v. Nachiar Ammal, 1918 Mad W N 199 : (AIR 1918 Mad 143). In that case, the money claimed by the plaintiff became payable only after the institution of the suit and there was no existing cause of action at the time of the institution of the suit. Nevertheless, the learned Judge overruled the objection of the defendant that the suit was premature and decreed the suit. They expressed the opinion that it was undesirable that the plaintiff should be compelled to bring another suit for money and that in exceptional circumstances a decree could be granted even in cases where the cause of action had arisen after the suit.

(14a) This is also the view embodied in A. N. Shah v. Annapurnamma, : AIR1959AP9 .

(14b) A similar rule is stated by the Calcutta High Court in Chinta Hararan v. Radha Charan, 37 Ind Cas 962 : (AIR 1917 Cal 822).

(14c) In Lakshmi Ammal v. Narayanaswami Naicker, : AIR1950Mad321 , Viswanatha Sastry J. took the view that a court in a proper case had power to take notice of events subsequent to the suit in order to shorten litigation, avoid unnecessary expenses and do complete justice between the parties and that if a cause of action not available on the date of the suit accrued during its pendency, the court had a discretion to grant an amendment of the plaint so as to enable the plaintiff to include a fresh cause of action. It is not always necessary to insist upon the formal amendment of the plaint. Courts could take cognizance of facts coming cases but before the disposal thereof even without a formal request for amending the plaint.

(15) Further, in this case, it should be borne in mind that in the first instance, the 2nd defendant remained ex parte and this point was raised in the written statement only in 1956 long after the plaintiff had paid the money. The plaintiff had answered this by the averment in the rejoinder filed with the permission of the court that it was the usual practice in the courts in the State of Hyderabad to ask for permission to file a rejoinder and if the court permitted it, the rejoinder became part of the pleadings and as such it should be taken as a statement made by the plaintiff in the plaint that he had paid the amount of the decree; in other words, the rejoinder had the effect of suitably amending the plaint.

(16) Even if a formal amendment was necessary , the respondent in this case he now filed a petition for amending the plaint so as to enable him to include this cause of action. We are inclined to accept this petition in spite of the opposition as we think that that course would best attain the ends of justice. We feel that the instant case in an approprite one where this indulgence should be granted to the plaintiff. To dismiss the plaint as being premature is to drive the plaintiff to another suit, which means unnecessary litigation and expense. We are not persuaded that this is a case in which relief should be denied to the plaintiff by reason of the payment having made subsequent to the filing of the suit. If that course is adopted, it would be defeating the ends of justice and would not advance the cause of it. In our opinion, the learned Judge was right in giving a decree to the plaintiff, taking notice of the payment made long before the defendant raised this point, though after the institution of the suit.

(17) In the result, the appeal is dismissed without costs.

GH/ AGK/ V. B. B.

(18) Appeal dismissed.


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