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Thakur Umed Singh Vs. Amolakchand - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 70 of 1957
Judge
Reported inAIR1963Raj93
ActsCode of Civil Procedure (CPC) , 1908 - Sections 34 - Order 41, Rules 22 and 33
AppellantThakur Umed Singh
RespondentAmolakchand
Appellant Advocate Roshanlal Maheshwari, Adv.
Respondent Advocate Magraj, Adv.
DispositionAppeal allowed
Cases ReferredGheesalal v. Moolia
Excerpt:
.....in the court below complained on the very next day of the decision of the appeal that his cross-objection had not been considered and the court in its judgment under appeal has recognised that fact and almost owned its own mistake in not deciding the cross-objection and entertained the opinion that that mistake deserved to be rectified even after the appeal was decided in the manner in which it was. in the first place, it is a well-established principle that no party should suffer on account of a mistake of the court. as already explained, the error here was attributable not to the plaintiff but to the learned judge, who, having heard the arguments on the appeal as well as the cross-objection reserved the case for its judgment and when he came to deliver the judgment a few days..........by this judgment and challenged it, the defendant by way of an appeal and the plaintiff by a cross-objection. it seems that the appeal and the cross-objection were both heard by the learned civil judge on the 21st september, 1956, and then the case was set down for judgment on the 24th september, 1956. on the lastmentioned date, the defendant's appeal was dismissed; but the judgment, by an unfortunate oversight, omitted to deal with the cross-objection altogether.consequently, on the very next day, that is, the 25th september, 1956 this error was brought to the notice of the court below and it was prayed that the cross-objection should also have been decided but as it had not been, a prayer was made that the same be decided now. notice was given of this application to the defendant.....
Judgment:

I.N. Modi, J.

1. This is a plaintiff's second appeal in a suit tor recovery of price of goods sold by the plaintiff to the defendant. This suit was partly decreed by both courts below to the extent of Rs. 911/12/3 as principal and Rs. 201/11/9 as interest.

2. The main question in this appeal is whether the courts below have exercised their discretion properly in disallowing pendente lite and future interest to the plaintiff. In order to appreciate the point in controversy, a few facts require to be stated. The trial court decreed the plaintiffs' suit as stated above but disallowed pendente lite and future interest by a cryptic observation in its judgment that it did not consider it proper to allow any such interest to the plaintiff. Both parties felt aggrieved by this judgment and challenged it, the defendant by way of an appeal and the plaintiff by a cross-objection. It seems that the appeal and the cross-objection were both heard by the learned Civil Judge on the 21st September, 1956, and then the case was set down for judgment on the 24th September, 1956. On the lastmentioned date, the defendant's appeal was dismissed; but the judgment, by an unfortunate oversight, omitted to deal with the cross-objection altogether.

Consequently, on the very next day, that is, the 25th September, 1956 this error was brought to the notice of the court below and it was prayed that the cross-objection should also have been decided but as it had not been, a prayer was made that the same be decided now. Notice was given of this application to the defendant but he chose to remain ex parte. Consequently, the learned Civil Judge considered the plaintiffs application and came to the conclusion that he was competent to decide the cross-objection and thereby rectify the mistake which had crept in. One more point was raised before the learned Civil Judge in the cross-objection and that was that the Munsiff had fallen into error in calculating the amount of interest payable to the plaintiff upto the date of the suit as Rs. 201/11/9 only while the correct figure should have been Rs. 209/3/9 as claimed in the plaint, although the actual amount of interest payable to the plaintiff at 6 per cent. per annum simple amounted to much more.

The learned Civil Judge repelled this plea by holding that the Munsiff was correct in granting Rs. 201/11/9 as interest. As for the other point, the learned Civil Judge recognised in his judgment that the Munsiff had not given any reason for not allowing pending and future interest. He however, went on to hold that counsel for the plaintiff had not been able to convince him as to how the discretion exercised be the Munsiff was incorrect, and therefore, he concluded that he did not consider it proper to interfere with the discretion of that court. In this view of the matter, he disallowed the cross-objection leaving the parties to theirown costs of the cross-objection. The plaintiff has now come up in second appeal to this Court.

3. In this appeal, the same two points as were urged before the court below have been argued before me. Learned counsel for the defendant, however, raised a preliminary objection to the effect that the learned Civil Judge was not at all competent to hear and dispose of the cross-objection once the appeal had been decided and he had become functus officio and, therefore, the cross-objection must be thrown out on that ground alone.

4. It may be pointed out at this place that learned counsel for the defendant was under the impression that the cross-objection had not been argued at all or pressed before the court below. That impression, however, turns out to be entirely incorrect because learned counsel for the plaintiff in the court below complained on the very next day of the decision of the appeal that his cross-objection had not been considered and the court in its judgment under appeal has recognised that fact and almost owned its own mistake in not deciding the cross-objection and entertained the opinion that that mistake deserved to be rectified even after the appeal was decided in the manner in which it was.

5. I have carefully considered the contention of learned counsel for the defendant and have come to the conclusion that it is devoid of any real force. In the first place, it is a well-established principle that no party should suffer on account of a mistake of the court. As already explained, the error here was attributable not to the plaintiff but to the learned Judge, who, having heard the arguments on the appeal as well as the cross-objection reserved the case for its judgment and when he came to deliver the judgment a few days after, he obviously forgot that the plaintiff had also filed a cross-objection and that the same fell to be decided. This ground, in my opinion, was by itself sufficient to enable the court below to proceed to rehear and dispose of the plaintiff's cross-objection in that court. I may also add that there is nothing in Order 41, Rule 22 of the Code of Civil Procedure which should have led the court below or which should lead this Court to come to the conclusion that the learned Civil Judge was deprived of his jurisdiction to dispose of the cross-objection on the merits in the circumstances of the case.

Learned counsel for the defendant drew my attention to the decision of the Allahabad High Court in Asghar Ali v. Riayat Hussain, 1882 All WN 29. The facts of this case were that on the hearing of the appeal on the 23rd January, 1882, the respondents did not urge their cross-objection. Thereafter on the 26th January they asked the court to make an order allowing their objection. The learned Judges disposed of the respondents' application by holding that it was too late to entertain the cross-objection with reference to Section 561 of Act No. 10 of 1877. For one thing, the facts of this case are entirely different from those in the present case. There the respondents did not care to urge their cross-objection which cannot be possibly predicated of the case before me. Then again, he language of Section 561 of the Act of 1877 clearlyseems to me to be different from its present counter part, that is Order 41, Rule 22 of the Code of Civil Procedure, 1908 (No. V of 1908). Section 561 wasworded as follows:

'Any respondent, though he may not have appealed against any part of the decree, may 'upon the' hearing not only support the decree on any of the grounds decided against him in the Court below, but take any objection to the decree which he could have taken by way of appeal, provided he has filed a notice of such objection not less than seven days before the date fixed for the hearing of the appeal.

Such objection shall be in the form of a memorandum, and the provisions of Section 541, so far as they relate to the form and contents of the memorandum of appeal shall apply thereto.'

The underlining (here in single ' ' --Ed.) is mine).

6. Relying on the words 'upon the hearing' it was held under the old Code that if the appeal, was withdrawn before the hearing, the respondent could not prosecute his cross-objection and similarly it was held that if the appeal was dismissed for default, the cross-objection could not be heard. It requires to be carefully noted that under the present Rule, the words 'upon the hearing' have been omitted from the text of the rule, and Sub-rule (4) has been added so that it would no longer be possible to entertain the view that the withdrawal of an appeal or the dismissal of it for default would preclude the hearing of the respondent's cross-objection.

Having regard to this important change in the language of the rule, it would be hardly reasonable to accept the general proposition that used to be held that the entertainment of the cross-objection is purely contingent and dependent upon the hearing of the appeal. In any case, it clearly seems to me, apart from the contingencies for which special provision has been made by Sub-rule (4) of Order 41, Rule 22, that where as appeal has been disposed of on the merits and the cross-objection has by sheer inadvertence remained to be decided, it can (not ?) be legitimately held, having regard to the language of the new rule, that the cross-objection cannot survive. That would be all the more so where the mistake on account of which the cross-objection has not been decided is committed by the court itself before which the cross-objection is filed.

7. The only other point which it is necessary to advert to in this connection is that according to learned counsel for the respondent, this may lead to an interference with the decree of the court passed on appeal and as counsel put it, thereby the finality of that decree would be affected and perhaps two inconsistent decrees may come into existence. I do not find any substance in this contention either, because any difficulty that learned counsel envisages should be curable under the provisions of Order 41, Rule 33, C. P. C. the object of which clearly is to enable the appellate Court to do complete justice between the parties and to avoid contradictory and inconsistent decisions on the questions arising in the same suit. It is for this purpose that a discretionary power is vested in the appellate court under this provision to pass such decree or order as the justice of the case may require.

8. From the foregoing discussion, I am on the whole disposed to hold that the court below did not fall into any error of law when it proceeded to decide the cross-objection in question even after it had decided the appeal earlier.

9. This brings us to the merits of the appeal, and the first question to decide is whether the courts below have properly exercised their judicial discretion in disallowing pendente lite and future interest to the plaintiff in all the circumstances of the case. As already stated, the trial Court did not give any reason whatsoever for disallowing the interest claimed apart from saying that it did not consider it necessary to award any such interest. When the matter was before the first appellate Court, it did recognise that the trial Court had not given any reason for the conclusion to which it came.

All the same, that Court repeated the error into which the Court of first instance had fallen when it merely observed that the first Court had exercised its discretion and it would not be proper to interefere with it. This, in my opinion, was not a satisfactory way of dealing with the case. It was held in Gheesalal v. Moolia, ILR (1952) 2 Raj 319: (AIR 1952 Raj 159) that a creditor would be entitled to pendente lite and future interest unless there were reasons why he should be deprived of it. I should further like to point out that where the Courts below disallow such interest, they must indicate the reasons for the conclusion to which they have come so that this Court may be assured that the discretion which undoubtedly vests in the Courts below in this regard has been exercised judiciously and on correct principles. This has not been done in the present case.

10. The question still arises whether there are any reasons which should lead to disallowance of the interest claimed in the instant case. I regret, I can see none. The dealings in the present case came to be started some time in 1948. There is abundant documentary evidence on the record which has been properly held to be proved to the effect that the defendant had agreed to pay the sum due by him to the plaintiff together with interest. See Ex. P-1 dated 2-5-1948, and Ex. P-2 dated Baisakh Vadi 13 Smt. 2005 (corresponding to 7th May 1948). The plaintiff waited for about four years to bring his suit hoping that the defendant would perform the promises which he was making from time to time. These promises however were made to be broken with the result that the plaintiff was compelled to bring his suit on 21-1-1952. The defendant raised all possible pleas to defeat the suit so that the trial was protracted, and the trial Court gave its decision on 4-5-1955. The defendant then went up in appeal and this was disallowed, on 24-9-1956. In these circumstances, I am definitely of the opinion that a sound exercise of discretion in a case like the present unquestionably warrants that pendente lite and future interest should have been allowed to the plaintiff, and I hold accordingly. Having regard to all the circumstances of the case, I would allow it at four per cent. per annum simple.

11. The only other question which requires to be dealt with is whether the Courts below were right in holding that interest on the sum of Rs. 911/12/3 upto the date of suit at six per cent.per annum simple amounted to Rs. 201/11/9 only. According to learned counsel for the plaintiff the actual interest so calculated amounts to more than Rs. 209/3/9 being the sum claimed in the plaint Learned counsel for the defendant has not been able to controvert this position. That being so, I am of opinion that the plaintiff is entitled to Rs. 209/3/9 as interest as claimed by him. I hold accordingly.

12. For the reasons stated above, this appealis allowed and the judgments of the Courts beloware modified so that the net result of the entire suitis that there will be a decree for the plaintiff for asum of Rs. 1121/- together with pending and futureinterest on the sum of Rs. 911/12/3, being the principal amount, at four per cent. per annum simple fromthe date of the suit to the date of realisation. Theplaintiff will also get his costs from the defendantwith respect to the subject-matter of this appealthroughout, apart from the costs which have alreadybeen allowed to him.


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