C.A. VAIDIALINGAM, J.
1. This appeal by certificate issued by the High Court of Assam and Nagaland at Gauhati, which involves a pure question of fact, is devoid of any merits.
2. The appellant instituted a suit against the first defendant and his son for recovery of a sum of Rs 11,524/11/9, being the value of 1133 tea chests. The first and the second defendants are both dead and the respondents in the appeal herein are their legal representatives. In fact the second defendant son of the first defendant was only a pro forma defendant. According to the plaintiff the first defendant was the Manager of the concern from February 7, 1932 to March 31, 1952 and then he became the Superintendent of the concern from March 31, 1952 to December 1952.
3. The case of the appellant was that the first defendant had failed to account for the said quantity of tea chests and that he had delivered them to his son, the second defendant without authority. Therefore, the appellant claimed the value of those tea chests at Rs 15 per chest including freight and insurance charges etc. The plaintiff further pleaded that the first defendant had admitted his liability in some of the chest accounts furnished by him to the appellant company.
4. The second defendant did not file any written statement. The first defendant denied his liability and contested the claim. He referred to the fact that his son, second defendant, was having business in tea chest and that there were mutual accounts between him and the plaintiff and that there are mutual liabilities to be adjusted.
5. The trial court accepted the plea of the plaintiff and decreed the claim. On appeal the High Court reversed the judgment and decree of the trial court and dismissed the plaintiff's claim.
6. Mr Bharul Islam, learned counsel for the appellant, urged that the High Court had made out a new case not pleaded by the defendant and has dismissed the suit on that basis and that it has also not properly appreciated the admissions made by the first defendant in the chest accounts sent by him to the plaintiff.
7. We have been taken through the judgment of the High Court and we are satisfied that the High Court has reversed the decree of the trial court after a careful consideration of the evidence on record. In fact, it is seen that the High Court has referred to the admissions made by some of the plaintiff witnesses to the effect that the second defendant as Secretary of the East India Planters Co-operative was dealing in tea chest business and that he used to receive various consignments booked in the name of the Manager of the appellant company. The first defendant had also given evidence to that effect and as his evidence was fully corroborated by the evidence on the side of the plaintiff, the High Court was justified in holding that the second defendant was having business of his own and that there was nothing improper for the first defendant handing over the tea chests to his son on the reasonable belief that they belonged to him. But more important than this is the finding of the High Court that the appellant did not adduce any evidence to show his ownership over the tea chests which are alleged to have been handed over by the first defendant to the second defendant.
8. The High Court has also held, after referring to the evidence on the side of the plaintiff, that no material has been placed to show any entrustment of the tea chests by the plaintiff to the first defendant. No books of accounts were produced by the appellant either to establish the purchase of tea chests in question or to establish their identity.
9. Considerable reliance has been placed by the learned counsel for the appellant that the trial court had decreed the claim on the basis of admissions contained in Exhibits 8, 8(i) and 8(ii) and that these admissions have not been properly appreciated by the High Court. We are not inclined to accept this contention. The High Court has referred to the fact that the appellant has denied the correctness of those accounts and therefore it was not open to the appellant to rely on the entries contained in Exts. 8, 8(i) and 8(ii) as amounting to any admission made by the first defendant. We do not find any basis for the contention that the High Court has reversed the decree of the trial court on a new case not pleaded by the first defendant nor without reference to the material on record.
10. It is difficult to appreciate how the High Court granted a certificate under Article 133(1)(c) of the Constitution. The appeal is dismissed with costs.