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Jiban Kali Mukherjee Vs. Manimala Dassi - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1919Cal159,49Ind.Cas.1006
AppellantJiban Kali Mukherjee
RespondentManimala Dassi
Excerpt:
evidence act (i of 1872), section 65, clause (c) - secondary evidence--admissibility of copy when original not found--landlord and tenant--rent, tender of, without interest, whether good. - .....at the rate named in the kabuliyat per mensem and not per annum. for these reasons the third point with regard to no rate of interest being provided by the kabuliyat fails. this disposes of the first contention, because it is admitted that if interest was payable no proper tender was made. rent only and no interest was tendered.3. so far as the second point is concerned, it appears upon the materials before us that in the original plaint no reference was made to the kabuliyat. a subsequent application was made to amend the original plaint by alleging the existence and the contents of the kabuliyat. upon this application leave was given, and the defendant was given permission to file an additional written statement which ire failed to do. he must, therefore, be taken to have.....
Judgment:

1. This is an appeal by the defendant in a rent suit. Three points were urged before us in appeal. First, it is said that a good tender was made and that, therefore, the Court should not have allowed interest at the rate claimed. Secondly, it is said that interest was claimed on the basis of a kabuliyat and that the first Court should not have admitted the kabuliyat in evidence, and thirdly it is said that having regard to the fact that it is not stated in the kabuliyat whether interest at the rate of Rs. 320 per cent, was per mensem or per annum, we should reject the provision in the kabuliyat with regard to the payment of interest.

2. I will, deal with the third point first, because the first point really depends upon that. The kabuliyat unfortunately has not been translated and has not bean printed, and, therefore, it is impossible for us to arrive at a conclusion upon the kabuliyat itself as to whether the rate of interest is per mensem or per annum. This is the fault of the appellant and we do not think that we ought to grant him an adjournment in order to have the document translated and printed, and indeed it appears to us that this point was not really urged before the District Judge, as he has not referred to it in his judgment, and -upon the question of construction it appears that the first Court did arrive at a conclusion that the interest was payable at the rate named in the kabuliyat per mensem and not per annum. For these reasons the third point with regard to no rate of interest being provided by the kabuliyat fails. This disposes of the first contention, because it is admitted that if interest was payable no proper tender was made. Rent only and no interest was tendered.

3. So far as the second point is concerned, it appears upon the materials before us that in the original plaint no reference was made to the kabuliyat. A subsequent application was made to amend the original plaint by alleging the existence and the contents of the kabuliyat. Upon this application leave was given, and the defendant was given permission to file an additional written statement which Ire failed to do. He must, therefore, be taken to have admitted the existence of the kabuliyat. Then it is said that even if this is so the admission of a copy was irregular. But we find that it is stated in the judgment of the District Judge that a search was made for the original kabuliyat and that as it was not found, he allowed a copy to be tendered in evidence. We think that he was right in so doing.

4. For the reasons above stated this appeal fails and must be dismissed with costs.


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