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NaraIn Das and ors. Vs. Firm Ghasi Ram Gojar Mal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All353
AppellantNaraIn Das and ors.
RespondentFirm Ghasi Ram Gojar Mal and ors.
Excerpt:
.....amount of damages it would have been necessary to dismiss the suit altogether, but in view of the statement of narain das this course was not open to the court. 4. the next question argued by learned counsel for the appellants is that the plain, tiff entirely failed to prove the amount of damages suffered by him. it is perfectly true that this witness does not say in so many words that he has personal knowledge of what he states but it appears that the parties were satisfied with the statement made by this witness and the defendants did not consider it necessary to pursue the matter further and cross-examine this witness with respect to his personal knowledge of the facts he was stating. it is manifest that under the circumstances the learned civil judge adopted perfectly correct..........the duty of the plaintiff to have produced corroborative evidence in support of the entries in his account books. legislature however does not require any particular form of evidence in addition to entries in books of account and any relevant fact which can be treated as evidence within the meaning of the evidence act would be sufficient corroborative evidence furnished by the entries in books of account if true. the question is whether in the present case there is any such corroboration. on behalf of the plaintiff, kishan gopal has been produced to corroborate the entries in the account books. this witness is employed as 'munim' of the plaintiff's firm. he proved the entries in the account books and stated that the plaintiff had spent rs. 1982-1-3 on account of the defendants in the.....
Judgment:

Mohammad Ismail, J.

1. This is an appeal from a decree of the learned Civil Judge of Bulandshahr which reversed a decree of the learned Munsif of Khurja. The plaintiff is a firm of commission agents. It was alleged in the plaint that the firm suffered a loss of Rs. 750-9-3 on behalf of the defendants in the purchase and storage of Bejar under the instructions of the defendants who owned a joint family firm known as Bhola Nath Narain Das. The claim was contested on various grounds by the defendants. The trial Court dismissed the claim but on appeal the decree of the Court of first instance was reversed and the suit was decreed for the entire amount against Narain Das and for Rs. 466-14-0 against the remaining defendants. The defendants have now come to this Court in appeal.

2. The first point argued on behalf of the appellants is that the learned Civil Judge has erred in passing a decree for the entire amount claimed by the plaintiff against Narain Das. It is contended that at the worst a decree for Rs. 466-14-0 could be passed as the Court found that the plaintiff suffered a loss to this extent only. It appears that during the pendency of the suit before the learned Munsif on 5th March 1934 Narain Das, one of the defendants, made a statement that if Hargu Lal plaintiff stated that Narain Das, defendant 2, was also a party to the agreement the suit may be decreed against him. Hargu Lal was examined on oath and stated that Narain Das was also a party to the agreement. On the basis of this statement, the suit for Rs. 750-9-3 was decreed against him. Learned Counsel for the appellants contends that the statement of Narain Das by itself does not amount to an adjustment of the suit. It was argued that the decision of the case against Narain Das depended on the statement of Hargu Lal. If Hargu Lal declined to make any statement no action could be taken against Narain Das. It was only after Hargu Lal had made a statement that the trial Court could take action on it. As the statement of Hargu Lal disposed of only one of the several issues involved in the suit, counsel urged that it was not proper for the learned Civil Judge to have decreed the entire claim against Narain Das. The binding nature of statements of this description has been the subject of discussion in numerous cases in this as well as other High Courts. The controversy was set at rest by the decision of the Full Bench case in Akbari Begam v. Rahmat Husain : AIR1933All861 . The learned Chief Justice after a review of the case law on the subject came to the following conclusion:

In my opinion the true basis of the binding character of such an agreement is that the original contract to abide by the statement of a third person is perfected into an adjustment of the claim in terms of the statement made, as soon as the referee makes the statement. After that stage, neither party can resile from the agreement because the claim has been duly adjusted, and it has become the duty of the Court not only to record it, but also to pass a decree in terms of it.

3. Learned Counsel for the appellants very properly has not questioned the authority of the Court to accept the statement of Hargu Lal who was one of the plaintiffs in the suit, as binding on Narain Das. What he contends is that the statement of Hargu Lal disposes of only one of the issues in the case and that it was the duty of the Court to have recorded evidence in order to find out what was the correct amount for which the suit ought to be decreed against Narain Das. In my judgment the contention of learned Counsel for the appellants is untenable. According to the procedure laid down in the Civil Procedure Code when a defendant appears in response to a summons he may either contest the suit or admit the claim. In the present case Narain Das did not adopt either of these two courses. He offered to bind himself by the statement of Hargu Lal plaintiff. When Hargu Lal made the statement it follows that the Court was entitled to decree the claim against Narain Das, as the only condition laid down by him in his statement had been fulfilled. There was no reservation in the statement of Narain Das to the effect that only a part of the claim was to be decreed. The claim was for Rs. 750-9-3 and the Court had no option but to award the entire amount claimed by the plaintiff against the defendants. If the Court were to accept the contention of the learned Counsel for the appellants it might lead to most anomalous consequences. For instance, if the Court was not satisfied with the evidence of the plaintiff as to the amount of damages it would have been necessary to dismiss the suit altogether, but in view of the statement of Narain Das this course was not open to the Court. The suit had to be decreed in its entirety and not in part. In my judgment, the learned Civil Judge has come to a right conclusion in accepting the statement of Hargu Lal as an adjustment of the claim and passing a decree for Rs. 750-9.3 against Narain Das.

4. The next question argued by learned Counsel for the appellants is that the plain, tiff entirely failed to prove the amount of damages suffered by him. It is contended that the plaintiff merely produced the 'bahis' of his firm and did not produce any corroborative evidence of the relevant entries proving the claim of the plaintiff. Under Section 34, Evidence Act entries in books of account regularly kept in the course of business are relevant but such statements shall not alone be sufficient evidence to charge any person with liability. It is obvious that it was the duty of the plaintiff to have produced corroborative evidence in support of the entries in his account books. Legislature however does not require any particular form of evidence in addition to entries in books of account and any relevant fact which can be treated as evidence within the meaning of the Evidence Act would be sufficient corroborative evidence furnished by the entries in books of account if true. The question is whether in the present case there is any such corroboration. On behalf of the plaintiff, Kishan Gopal has been produced to corroborate the entries in the account books. This witness is employed as 'munim' of the plaintiff's firm. He proved the entries in the account books and stated that the plaintiff had spent Rs. 1982-1-3 on account of the defendants in the purchase of Bejhar and shop rent, etc. Out of this amount, the witness stated that the defendants had paid only Rs. 400. No cross-examination has been directed on behalf of the defendants to question the accuracy of this statement. It is perfectly true that this witness does not say in so many words that he has personal knowledge of what he states but it appears that the parties were satisfied with the statement made by this witness and the defendants did not consider it necessary to pursue the matter further and cross-examine this witness with respect to his personal knowledge of the facts he was stating.

5. In Dwarka Das v. Sant Baksh (1895) 18 All 92 the facts were very much similar. In this case the plaintiff sued for the recovery of money due on a running account and produced his account books, which were found to be books regularly kept in the course of business in support of his claim. One of the plaintiffs gave evidence as to the entries in the account books but in such a manner that it was not clear whether he spoke from his personal knowledge of the transactions entered in the books, the entries in which were largely in his own hand-writing, or simply as one describing the state of affairs that was shown by the books. He was cross, examined but no questions were asked him to show that he was not speaking as to his personal knowledge. On these facts it was held that:

The evidence given as above should be interpreted in the manner most favourable to the plaintiff and might be accepted in support of the entries in the plaintiffs' account books which by themselves would not have been sufficient to charge the defendants with liability. [Head note of 18 All 98.]

6. It may be noted that in the present case also, the defendants did not choose to cross-examine the plaintiff. The fact that he was the 'munim' of the plaintiff's firm was not questioned nor was his knowledge of the facts tested in cross-examination. Under these circumstances, I see no reason to differ from the learned Civil Judge in holding that the plaintiff has succeeded in establishing his claim with regard to the amount of money invested by him on be-half of the defendants. Learned Counsel for the appellants has relied on Khunni Mal Narain v. Dwarka Das Baijnath : AIR1930All710 . The facts of this case appear to be entirely distinguishable. In this case the oral evidence produced by the plaintiff consisted mainly of his own statement and that of his 'munim'. The Court below had reasons for rejecting the statements of these witnesses. The learned Judges in deciding this case did not examine the evidence but accepted the view expressed by the lower Appellate Court. Eliminating the oral evidence, there was nothing left but the bare entries in the account books in support of the plaintiff's case which under Section 34, Evidence Act, were considered insufficient to base a decree upon it. There is nothing in this case which runs counter to the opinion expressed in the case reported in Dwarka Das v. Sant Baksh (1895) 18 All 92, mentioned above. Having regard to all the circumstances in my judgment there is sufficient evidence on the record to corroborate the entries in the account books.

7. The next point urged on behalf of the appellants is that the learned Civil Judge had no jurisdiction to accept additional evidence in order to prove the amount of loss suffered by the plaintiff on 10th January 1931. It appears that the plaintiff had based his claim on the date of sale of the grain which was in his custody. The sale had taken place according to the plaintiff between 9th January 1931 and 6th March 1932. The evidence produced on behalf of the plaintiff referred to the market price within these dates. As the learned Civil Judge was of the opinion that the material date was the date on which the contract was repudiated, namely 9th January 1931, the plaintiff was entitled to damages on, the basis of the market price of grain on that date. There was naturally no evidence on the record to prove this fact. The learned Civil Judge under an order of 27th August 1935 after hearing arguments of the parties recorded his reasons for taking further evidence to establish the market price on or about 10th January 1931. The lawyers representing the parties agreed that the account books of certain firms may be summoned and whatever rates may be found in those account books may be relied upon for the decision of this issue. It is manifest that under the circumstances the learned Civil Judge adopted perfectly correct procedure and was within his jurisdiction in taking additional evidence. Order 41, Rule 25 provides that where the Court from whose decree the appeal is preferred has omitted to determine any question of fact which appears to the Appellate Court essential to the right decision of the suit upon the merits the Appellate Court may if necessary frame issues and refer the same for trial to the Court from whose decree the appeal is preferred. In the present case in view of the finding of the learned Judge it is obvious that it was essential to the right decision of the suit to record additional evidence and it would have been open to the Court to have remitted an issue on that point to the Court below. This however would have involved considerable, expense and time. The alternative procedure is provided by Order 41, Rule 27(b) which runs as follows:

But if (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any substantial cause the Appellate Court may allow such evidence or document to be produced or witness to be examined....

8. The Court below correctly followed this procedure and gave reasons for taking additional evidence. Learned Counsel for the appellants has relied upon Parsotim Thakur v. Lal Mohar Thakur and Ram Krishna Muraji v. Ratan Chand . In the former case it appears that the genuineness of a certain document exhibited in the case was disputed and on appeal in the High Court an application was made by the respondent to give him an opportunity of producing a genuine thumb-impression of the executants. The High Court allowed permission as prayed by the respondent. Their Lordships of the Judicial Committee disapproved of the procedure followed by the learned Judges of the High Court and held that:

Under Order 41, Rule 27(1)(b) it is only where the Appellate Court 'requires' it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce judgment or for any other substantial cause, but in either case it must be the Court that requires it.

9. In the present case this is exactly what has happened. It was the learned Civil Judge who thought it necessary that additional evidence should be adduced and he passed an order accordingly. The parties agreed as to the kind of evidence that was to be produced which would satisfy both parties. In Manmohan Das v. Ram Dei , their Lordships of the Judicial Committee have made similar observations with regard to the power of a Court under Order 41, Rule 27 and the correct scope and meaning of Rule 27, Sub-clause (b). In Ram Krishna Muraji v. Ratan Chand , in which additional evidence was improperly recorded but without protest their Lordships declined to eliminate it from consideration and read it as admissible piece of [evidence in appeal. It would appear from the authorities cited above that no objection can be taken against the procedure followed by the learned Civil Judge. In my judgment the learned Civil Judge had full jurisdiction to admit additional evidence in the appeal.

10. The last point that has been taken by learned Counsel for the appellants is not disputed. It appears that the learned Civil Judge has passed a personal decree against defendant 3 although he was no party to the agreement. The decree of the lower Appellate Court will be modified to this extent that defendant 3 will not be liable personally for the decretal amount, namely Rs. 466-14-0, but he along with defendants 4 to 12 will be liable for Rs. 466.14 to the extent of the assets of the joint family in their hands. In other respects the decree of the lower Appellate Court will stand. The appeal fails and is dismissed with costs. Leave to appeal under the Letters Patent is allowed.


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