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Firm Guari Lal Gurdev Dass and ors. Vs. Firm Joint Hindu Family Ajaib Singh Harbans Singh - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 528 of 1952
Judge
Reported inAIR1960P& H62
AppellantFirm Guari Lal Gurdev Dass and ors.
RespondentFirm Joint Hindu Family Ajaib Singh Harbans Singh
Cases ReferredLtd. Kanpur v. Iron and Steel Mazdoor Union
Excerpt:
.....single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in the absence of definite and reliable evidence the local commissioner was authorised to calculate the amount of those 100 bales at the market rate. the principal grievance made by the plaintiff, in the plaint, was that the defendant had failed to render accounts of rs. it is well settled that no amount of evidence can be led on a case which is not laid..........a statement before the trial court that a preliminary decree for accounts be passed and that a local commissioner be appointed to go through the accounts and report as to how much amount, if any, was due to the plaintiff. in accordance with this statement, a preliminary decree for rendition of accounts was passed in favour of the plaintiff against the defendant and pt. des raj, advocate, was appointed a local commissioner to go through the accounts and submit his report. pt. des. raj, however, died before he could submit his report, with the result that on 28-3-1951 shri b. s. thapar was appointed a local commissioner in place of pt. des raj. mr. thapar submitted his report on 23-5-1951, according to which rs. 4,810/8/6 were held due from the defendant to the plaintiff objections.....
Judgment:

Inder Dev Dua, J.

(1) This regular second appeal is directed against the judgment and decree of the learned District Judge, Ludhiana, accepting the plaintiff's appeal against the judgment and decree of the Senior Subordinate Judge dated 18-1-1952 whereby he had been granted a decree for the recovery of Rs. 1,775-1-3. The learned District Judge enhanced the decretal amount to Rs. 2,324/2/- and also awarded interest at the rate of 6 per cent per annum on the decretal amount from 12-1-1948 till realization.

(2) The plaintiff-firm, Joint Hindu Family Ajaib Singh Harbans Singh, used to carry on their business at Gujar Khan in District Rawalpindi before the partition of the country. In February, 1947, by means of several hundis beginning from 3-2-1947, he paid a sum of Rs. 7,000/- to Firm Gauri Lal Gurdev Dass, Commission Agents, Khanna Mandi, District Ludhiana, as margin money for purchases of some bales of cotton. It is alleged that the plaintiff purchased 200 blase through the defendant-firm. The plaintiff received back a sum of Rs. 2,100/- only and the defendant has neither returned the balance nor rendered any account of the transactions of the purchases and sales referred to above.

Expecting to find at least a sum of Rs. 4,900/- due to him on taking accounts, the plaintiff instituted the present suit for the recovery of Rs. 4,900/- plus any other sums which may be found due after taking the accounts. The defendant admitted that the plaintiff-firm had entered into contract of purchase and sale of cotton and that in pursuance of this contract the plaintiff actually purchased and sold the said number of bales through him. Receipt of Rs. 7,000/- as advance money from the plaintiff-firm was also admitted but it was pleaded that by these transactions the plaintiff-firm had suffered a loss of Rs. 4,770/-. After adjusting the return of Rs. 2,1000/- the defendant averred that only a sum of Rs. 130/- remained due to the plaintiff which the defendant was ready and willing to pay back.

(3) On 18-6-1949, the parties made a statement before the trial Court that a preliminary decree for accounts be passed and that a local Commissioner be appointed to go through the accounts and report as to how much amount, if any, was due to the plaintiff. In accordance with this statement, a preliminary decree for rendition of accounts was passed in favour of the plaintiff against the defendant and Pt. Des Raj, Advocate, was appointed a local Commissioner to go through the accounts and submit his report. Pt. Des. Raj, however, died before he could submit his report, with the result that on 28-3-1951 Shri B. S. Thapar was appointed a local Commissioner in place of Pt. Des Raj. Mr. Thapar submitted his report on 23-5-1951, according to which Rs. 4,810/8/6 were held due from the defendant to the plaintiff Objections were invited from both the parties,, but it was the defendant alone who objected to the report on the following main grounds:

1. The local commissioner was wrong in holding that the plaintiff purchased only 100 bales for ready delivery and the remaining 100 bales were purchased by him for forward delivery. This finding of the local Commissioner was objected to on the ground that it was contrary to the plaintiff's own allegations in the plaint and to the finding of the Court.

2. The local Commissioner was wrong in disallowing the sum of Rs. 103/4/- charged by the defendant for incidental expenses and Rs. 851/4/- charged by the defendant for payment of insurance premium.

(4) The trail Court agreed with the contention raised by the defendant that the local Commissioner was wrong in holding that 100 bales of cotton were not actually purchased and were merely a forward transaction. The court observed that this finding was against the plaintiff's allegation in the plaint as also in conflict with the order of the Court dated 21-8-1950. The following paragraph from the order dated 21-8-1950 was relied upon by the learned trial Court:

'The plaintiff definitely states in clear terms that the transaction was a purchase of 200 bales and sale of the same number. Now the plaintiff takes the position that in fact only 100 bales were in ready stock while 100 bales was in future delivery. This change of position can never be allowed' The Court felt that this error on the part of the local Commissioner was perhaps due to his ignorance of the above order of the Court; indeed, it was admitted by the local Commissioner himself that the said order had not been brought to his notice. The trial Court thereupon remitted the case back to the local Commissioner for a fresh report with a direction that he should make the report on the assumption that the plaintiff purchased 200 bales of cotton and sold the same number of bales through the defendant. It was further remarked by the Court that the rate at which the first 100 bales had been purchased by the plaintiff was admitted and this was clear from the statement of the plaintiff made before the local Commissioner.

The local Commissioner was, in the circumstances, directed to enquire and determine the rate at which the second 100 bales were actually purchased; he was not bound to Act merely on the entries in the defendant's basis but was enjoined to call for independent evidence from the parties; in the absence of definite and reliable evidence the local Commissioner was authorised to calculate the amount of those 100 bales at the market rate. The order also shows that there was no difference between the parties with respect to the price at which the 200 bales were sold. In these circumstances, the local Commissioner was merely required to determine the true price of 100 bales purchased by the plaintiff i. e., the bales which the plaintiff did not admit to have purchased and which the trial Court held in his order dated 29-10-1951 that he had purchased.

This order was not assailed by either of the parties by way of appeal or revision. It appears that the local Commissioner submitted his second report on 12-12-1951 according to which a sum of Rs. 1,775/1/3 was found due to the plaintiff from the defendant. Both parties objected to this report but the trial Court disallowed them both. The plaintiff raised three objections; the first objection related to an unexplained shortage in weight amounting to about 4 maunds and 25 seers; the second one related to the wrong calculation of interest and the third one related to a transaction of 80 maunds of loose cotton. All these three objections were rejected by the Court, the first two on the ground that the plaintiff had not been able to substantiate them and the third on the ground that it had already been disposed of by the Court by its order dated 29-10-1951, as a result of which a decree for Rs. 1, 775/1/3 with proportionate costs was granted in favour of the plaintiff against the defendant.

(5) Both the parties appealed to the Court of the District Judge. The defendant's appeal was disallowed and the plaintiff's appeal succeeded, the Court enhanced the decretal amount in his favour to Rs. 2,324/2/- ; interest was also allowed at the rate of 6 per cent per annum from 12-1-1948 to the date of realisation. The learned District Judge went into the evidence and held that in fact only 100 bales were actually purchased by the defendant which were admittedly sold on 12-12-1947 and 12-1-1948. The learned District Judge, as appears from his judgment, suspected that the parties had actually entered into forward transactions, but since such transactions were prohibited by law, they were dealing in an underhand way and were not mentioning the details in their correspondence; since this was his suspicion only, he felt that the case between the parties must be taken as if there was actual sale and purchase of only 100 bales of cotton.

On this basis the lower appellate Court determined the rights and liabilities of the parties and came to the conclusion that a sum of Rs. 2,324/2/- was due from the defendant to the plaintiff. The plaintiff was also awarded interest at 6 per cent, per annum on the decretal amount from 12-1-948 on the ground, that since the defendant had charged interest on the balance due from the plaintiff on account of the bale of cotton that he had purchased, the plaintiff was also entitled to charge the same from the date, the amount fell due from the defendant.

(6) The defendant has come here on second appeal. The counsel has raised only two points in criticism of the judgment and decree of the lower appellant Court. In the first instance, it is contended that the learned District Judge has made out an entirely new case on behalf of the plaintiff which is completely outside his pleadings. Our attention has been drawn to the plaint in which it is expressly stated that the plaintiff had, in 1947, purchased and sold cotton through the defendant; Rs. 7,000/- were paid for the purchase of 200 bales of cotton by means of hundis dated 3-2-1947, 10-2-1947 and 24-2-1947 and by one draft. It is also expressly stated that the plaintiff did actually purchase the required 200 bales. It is further pleaded that the defendant then sold 200 bales.

The principal grievance made by the plaintiff, in the plaint, was that the defendant had failed to render accounts of Rs. 4,900/-, the balance due after the return of Rs. 2,100/-. Our attention has also been drawn to the written statement filed by the defendant in which the purchase and sale of 200 bales was admitted as alleged in the plaint. It seems that the plaintiff had filed the suit in forma paupers. After holding an enquiry into pauperism on 21-5-1949, Shri H. D. Loomba granted permission to the plaintiff to sue as a pauper and the case was adjourned for written statement to 1-6-1949. On that date the proceedings adjourned to 18th of June for statement of parties, when it was agreed that a preliminary decree for accounts be passed and the local Commissioner be directed to go into the accounts and to submit his report.

The Court in accordance with the statements of the parties passed a preliminary decree for accounts. It appears that a question was raised before the local Commissioner about the defendant's bahis being false and fabricated. The local Commissioner referred this matter for decision to the Court on 26-7-1949. The Court enquired into the allegations after framing an issue, whether the account-books of the defendant were forged, and then came to a finding, on 21-8-1950, that there was nothing on the record to show that the bahis in question were forged ones. The Court also observed that the plaintiff had tried to over-reach the Court and wanted to change his position which he had taken in the plaint. After referring to the plaintiff's pleadings the Court expressly observed that the plaintiff had tried to over-reach the Court and wanted to change his position which he had taken in the plaint. After referring to the plaintiff's pleadings the Court expressly observed that this change of position could never be allowed. The defendant's bahis were held to be genuine and the local Commissioner was directed to proceed with his enquiry.

(7) In my opinion, there is force in the contention raised by the counsel for the appellant. It is well settled that no amount of evidence can be led on a case which is not laid or found in the pleadings or involved in or consistent with the case thereby made Kanda v. Waghu, AIR 1950 PC 68 and Hem Chand v. Pearay Lal, AIR 1942 PC 64. It is equally well settled that pleadings can never be deemed to have been amended; if any amendment is sought by a party, it must be expressly made with the leave of the Court. Trial of a suit is also to be confined to the pleas on which the parties are at variance; if the parties agree to a factual position then it can hardly be open to the Court to come to a finding different from such agreed facts. To borrow with gratitude the words of Bose, J. in J. K. Iron and Steel Co., Ltd. Kanpur v. Iron and Steel Mazdoor Union, (S) AIR 1956 SC 231 at p. 235, the only point of requiring pleadings and issues, is to ascertain the real difference between the parties, to narrow the area difference between the parties, to narrow the area of conflict and to set just where the two sides differ.

It is not open to the tribunal to fly off at tangent and disregarding the pleadings, to reach any conclusions that they think are just and proper. In the present case the parties had expressly and unequivocally agreed that 200 bales had actually been purchased and sold; there was no dispute and no conflict between them on this point of fact. With respect to the rates of 100 bales also there was no difference. The only question which the trial Court referred to the local Commissioner for enquiry was the determination of the true price of 100 bales purchased by the plaintiff. In this view of the matter, I think the lower appellate Court was in error, in permitting the plaintiff to go back on his pleadings, and ignoring the order dated 21-8-1950 of Mr. H. D. Loomba, Subordinate Judge, to override the order of the Senior Subordinate Judge dated 29-10-1951.

If the learned District Judge wanted to reopen the whole matter, it was incumbent on him to consider the question of amendment of pleadings, and if a case for such amendment was made out, then to remit the case to the trial Court for a proper trial after framing proper issues, so that the parties may have adequate opportunity of adducing evidence on the new case sought to be made out by the plaintiff. Mr. H. S. Gujral has submitted that the language of the plaint is capable of the construction placed on it by the learned District Judge. I do not agree. As mentioned above, the plaint is clear, explicit and precise when it says that 200 bales were actually purchased by the defendant and also sold by him. As a last resort Mr. Gujral orally prayed that we should permit him to amend the plaint and send it back for a de novo trial.

I regret, it is not possible for us to accede to this exceedingly belated request. The suit was instituted in August 1948 and the plaintiff never cared to ask for amendment during all these years. Amendment of the plaint at this stage would thus be wholly unjustified. Besides, there is no proper application for amendment in accordance with the rules, nor has sufficient cause been shown for setting up a new case altering the real matter in controversy AIR 1950 PC 68).

(8) On the second point, the counsel for the appellant has urged that n the plaint no claim on account of interest has been made, nor is there any proper evidence with regard to any custom or usage of the trade showing that interest is payable on the amounts found due in similar dealings. It has not been suggested at the Bar that the case is covered by Interest Act. In these circumstances, I find force in the appellant's contention that interest could not be legally allowed from 12-1-1948. It could, at best, be granted from the date of the suit. The counsel for the respondent has said practically nothing on this point. I would, therefore, hold that interest could only be granted to the plaintiff-decree-holder on the decretal amount from the date of the suit. It has not been suggested that the rate of interest is, in any way, excessive.

(9) For the reason given above, this appeal is allowed in part and setting aside the judgment and decree of the lower appellate Court I grant to the plaintiff a decree for the recovery of Rs. 1,775/1/3 against the defendant. This amount will carry interest at the rate of 6 per cent per annum from the date of suit till realisation. In the peculiar circumstances of the case, the parties are left to bear their own costs.

(10) D. FALSHAW, J.: I agree.

(11) Appeal allowed partly.


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