1. The suit out, of which this appeal arises, was brought by the plaintiff Satyendra Chandra Ghose Moulick against his uncle Arun Chandra Singha for the recovery of a sum of Rs. 50,800 said to be due from the defendant Arun Chandra on a promissory note executed by the defendant and dated August 9, 1929. There was also a claim for further interest at the rate of 9 per cent. per annum from the date of the institution of the said suit till judgment.
2. The defendant in his written statement admitted the execution of the promissory note, but pleaded that there was no consideration for it. The defendant further set up a story that the real date on which the promissory note was executed by him was March 13, 1930, and not August 9, 1929, as the plaintiff averred, and that the promissory note had been ante-dated in pursuance of an agreement between the parties. It is to be observed, therefore, that the only defence raised on the pleadings, was that there had been no consideration for the promissory note sued upon. That being the position, it is obvious on the face of it that there was an onus thrown upon the defendant to show why the plaintiff should not succeed in his claim.
3. When the case came to trial, the defendant gave evidence and ho set up a story which, put shortly amounted to this, that no money had ever passed between him and his nephew, and that the promissory note was given ostensibly in payment for the sale of the defendant's furniture which was lying in a house belonging to the defendant in Harrington Street, Calcutta. The 'defendant suggested that the apparent sale was nothing more or less than a device for securing the furniture against the claim on the defendant of many and various creditors.
4. It appears that the defendant was, originally at any rate, a man of considerable wealth, but sometime in the year 1927 a Receiver was appointed in respect of a mortgage which had been executed by the defendant and that Receiver was the present plaintiff Mr. Ghose Moulick. He continued to be a Receiver of the defendant's property until January 1931, when the Court of Wards took over charge of the whole of the defendant's affairs. At the defendant's request, it was declared that he was not fit to manage his own properties. The defendant summarized the position with regard to the giving of the promissory note thus: There were several creditors who had decrees against him and who wanted to attach his furniture. In order to protect those properties from sale, it was proposed that a debt should be shown in favour of his nephew and in liquidation of that debt, the properties should be at a valuation sold to him. Then he said that the promissory note was actually made out on March 13, 1930, and an entry was made in the defendant's cash book on that date for the purpose of showing that there had been an antecedent debt which, however, according to the defendant, was purely fictitious.
5. The only testimony placed before the Court on behalf of the defendant was the evidence given by himself. Subsequently, the plaintiff was called, and he totally denied that there was any such arrangement as the defendant had put forward. Oil the contrary, he said quite definitely that he had, from time to time, advanced various sums of money chiefly in cash to the defendant on various dates between the month of July 1929 and. the date of the promissory note, that is to say, August 9, 1929. It would seem, therefore, that the whole of the sum of Rs. 40,000 which is said to be the original principal sum lent' was advanced by the defendant in course of a month or thereabout. It is quite true that there is some small contradiction in the plaintiff's evidence in regard to the manner in which the payments were effected, because in one part of his evidence he says that sometimes payments were made in cash from the sums which he happened to have in his house, and sometimes made by monies which he had procured for the purpose by cashing cheques made out to himself. Later on, he gives his reasons that that method of payment was owing to the defendant's involved circumstances; and at the defendant's wish as the latter's account at the Bank was considerably overdrawn. The plaintiff, however, later on in his evidence does seem to say that on some occasions he endorsed, or, as he puts it, passed on to the defendant cheques which he himself had received.
6. Mr. Justice Buckland, who tried the suit, said in his judgment:
This is a simple suit on a promissory note.... The defendant denies that there was any consideration for the note and it is for him to establish it.
7. No doubt, that is the correct enunciation of the legal position, having regard to the form of the pleadings. The learned Judge, as I have said, had practically no evidence before him except the oral testimony of the defendant on the one hand and of the plaintiff on the other. There were, however, entries in certain books of accounts which on the face of them indicated that the money claimed was due and owing by the defendant to the plaintiff. The learned Judge having heard the witnesses and having considered those entries came to the conclusion that the defendant had built upon these entries a fictitious story of an ante-dated promissory note. The learned Judge says:
The defendant knew that the furniture was hypothecated and has denied that he was a party to any such benami transaction. If there was anything in the story put forward by the defendant, he could have called the officers of the estate, who were available, who made the entries. But that has not been done; nor has any attempt been made to call them.
8. Then the learned Judge says: 'It is suggested that the entries were made fictitiously in the interest of the plaintiff and under the direction of the plaintiff himself. The plaintiff denies/this and says that the money was actually advanced in various amounts on various dates'. ' The learned Judge summed up the whole thing in these words:
The defendant, in my judgment, is not within measurable distance of establishing the absence of consideration for the note, and there will be judgment for the amount claimed with costs and interest on judgment at six per cent.
9. The learned Advocate-General who has appeared before us on behalf of the defendant-appellant, has endeavoured to draw our attention to the fact that the account book produced at the trial was described as pucca rokar. He says that there was a kachcha rokar in which there was a signature of the plaintiff authenticating fictitiousness of the entry with regard to the alleged loan, and the learned Advocate-General has sought, to make much of the fact, that the kachcha rokar book was before the Court at the trial and that, in such circumstances, the learned Judge was entitled to take notice of it. Accordingly, we have been invited to allow the defendant to put before us, by way of additional evidence, the entries in the kachcha rokar to which I have referred, also other documents in addition to the oral testimony.
10. The application for the reception of additional evidence at the hearing of this appeal was made before us on June 14 last, and on that occasion we thought it desirable that the application should stand adjourned to be dealt with at ,the time of the hearing of the appeal after we had been placed in the position knowing something about the case and the circumstances in which it was suggested that the additional evidence should be entertained. We have listened very carefully to all that the learned Advocate-General has said upon this point; but it is abundantly clear that there is no reason why we should allow further evidence to be given at this stage of the proceedings. Even a cursory glance at the petition which was made for the production of further evidence, shows at once that the defendant has not put, forward any sufficient ground which would justify as in doing what would be tantamount to allowing the defendant, to repair the defects in the case put forward at the trial and which were entirely of his own making. It is obvious that this kachcha rokar, as it is described, and the other documents and in deed all the documents which the defendant now seeks to lay before us, were available or and some of them were actually in the hands of the defendant and his legal advisers at the hearing of the case in the Court below. Some suggestions were thrown out on behalf of the defendant that the learned Counsel who was then appearing for him, made efforts, although abortive or half-hearted efforts, to place the kachcha rokar before the Court. It is said that the learned Judge declined to look at the document on the ground that it was not translated but was put before him in some vernacular language. I am not at all satisfied that there was any such operation on the part of the learned Counsel appearing for the defendant. There was no mention of any such episode in the minutes, and, moreover, it is clear from the transcript of the short-hand notes of the ' cross-examination of the plaintiff by Counsel for the defence that no attempt was made to put to the plaintiff what, is said to have been verifying signature appearing on the pages of this kachcha rokar book.
11. What we are asked to do in this case is, to all intents and purposes, to allow the defendant to do what he ought to have done at the trial or to do something in regard to which there is no reason whatever that why he should not have done at the trial. To put the matter the other way round, we are asked to allow the defendant to have the benefit of a re-hearing of his case, so that he may put before the Court evidence in corroboration of the story which he was setting up to account for the existence of the promissory note. I have already said, and I say again with considerable emphasis that we see no reason why the evidence both oral and documentary which the plaintiff now seeks to put before us and which he could have put before the Court at the trial should be accepted. It is a lamentable fact that it never seems to have occurred to those who were in charge of the case on behalf of the defendant that it would be necessary to get the case up with proper care and diligence. This is another example of the kind of thing which constantly occurs, namely, that the parties and their legal advisers do not take all. proper steps to ensure that the case which they seem to make, shall be adequately presented before the Court. Something might have been done in this particular case if the defendant's story was true, in the way of getting further particulars, for example, of the plaintiff's allegation concerning the payments which the plaintiff said he had made to the defendant. Further discovery might have brought to light the condition of the plaintiffs pass-book and the state of his banking account. If, as is now suggested, some of the documents on which the defendant seeks to rely, were in the hands of the officers of the Court, or in the hands of the Chartered Accountant making investigation into the defendant's financial position, nothing would have been easier than for a proper notice to have been given in order to ensure that all documents relevant to the defendants case were available in Court so that they could have been put to the plaintiff in the course of cross-examination on behalf of the defendant. If the defendant has lost his case because these things were not done, the only comment one can make is that he fully deserved to lose his case for no one, either himself or any one acting for him, made the slightest attempt adequately to substantiate the case which the defendant was putting forward. It seems probable, in the peculiar circumstances of this case, that nobody bothered much on behalf of the defendant because it was realized from the beginning that the defendant had no real defence to the plaintiffs claim. Whichever is the real explanation, it is beyond doubt that nothing whatever has been put forward either in the written statement or in the argument of the learned Advocate-General, which would justify us in granting the application of the defendant to be allowed to put forward further evidence.
12. The principles to be applied in determining an application for leave to call further evidence were stated by Lord Chelmsford in the case of Shedden v. Patrick (1869) 1 HL 470 at p. 545, which was quoted with approval by Lord Justice Scrutton in the case of Nash v. Rochford Rural District Council (1917) 1 KB 384 at p. 393 : 86 LJKB 370 : 116 LT 129 : 81 JP 57 : 15 LGR 103. Lord Chelmsford said:
It is an invariable rule in all the Courts, and one founded upon the clearest principles of reason and justice, that if evidence which either was in the possession of parties at the time of a trial, or by proper diligence might have been obtained, is either not produced, or has not been procured, and the case is decided adversely to the side to which the evidence was available, no opportunity for producing that evidence ought to be given by the granting a new trial.
13. Lord Justice Scrutton adds this comment:
That is the principle which was acted upon by this Court in the first application in the case of II. M.S. Hawke (1912) 28 TLR 319. I take the reason of it to be that in the interests of the estate, litigation should come to an end at some time or other ; and if you are to allow parties who have been beaten in a case to corns to the Court and say 'Now let us have another try ; we have found some more evidence,' you will never finish litigation, and you will give great scope to the concoction of evidence.
14. Now in the present proceedings the defendant-appellant is not saying 'that he. has found' ''some more evidence'; he is merely asking to be allowed to use evidence which was either actually in his possession at the time of the trial, or by proper diligence could have been obtained by him at the trial. In the circumstances, there is not a scintilla of reason why we should allow the application which has been made.
15. The learned Advocate-General, however, has said that even if that application is refused, nevertheless, upon the case as it stands we ought to take the view that the defendant had given evidence sufficient to require the learned Judge to come to the conclusion that the plaintiff ought not to succeed in his claim. With regard to that, the position as it was before the learned Judge who tried the case, was that the determination of the case depended wholly upon a simple question of fact. The learned Judge came to the conclusion that the defendant had not established his case, and we see no reason whatever for thinking that that conclusion was other than correct, having regard to the evidence which the learned Judge had before him at the trial. Consequently, this appeal must be dismissed with costs, including the cost of the application made on June 14, 1934.
16. I agree.