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Kashi Ram Vs. Jai Ram and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Misc. Petn. No. 45 of 1955
Judge
Reported inAIR1957HP27
ActsConstitution of India - Article 133 and 133(1); ;Code of Civil Procedure (CPC) , 1908 - Section 109
AppellantKashi Ram
RespondentJai Ram and ors.
Appellant Advocate D.N. Awasthy, Adv.
Respondent Advocate Sarvsri Tek Chand and; H.C. Anand, Advs.
DispositionPetition dismissed
Cases ReferredCouncil v. Jallan
Excerpt:
- .....to the supreme court would not lie, unless this court certifies that the case is a fit one for appeal to thesupreme court.5. learned counsel for the petitioner argued that this court has not interpreted the bond, ex. p-1, executed by jai ram on 19-3-1993 b. correctly. according to mr. awasthy, the sum in question (rs. 5,000/-) had nothing to do with the partnership assets. i was requested to hold that it was a personal loan to jai ram. learned counsel for the respondents pointed out that the finding of this court was that although the language of ex. p-1 was cumbersome, nevertheless, so much was clear that the money in question was expressed as having been advanced by the plaintiff to the firm, through jai ram, for the wood sawing business carried on at kulu, on behalf of the firm......
Judgment:
ORDER

Ramabhadran, J.C.

1. This is is a petition for grant of certificate for appeal to the Supreme Court against the decision of this Court dated 10-8-1955 in Regular First Appeal No. 12 of 1950. It arises under the following circumstances:

2. The petitioner filed a suit against Jai Ram and four others for the recovery of Rs. 8,500/- (Rs. 5,000/- principal and Rs. 3,500/- interest) on the allegation that Jai Ram, as manager of the joint Hindu family (consisting of the defendants), took a loan for Rs. 5,000/- from the plaintiff and his father on 19-3-1993 B. The suit was resisted, inter alia, on the ground that the sum of Rs. 5,000/-, mentioned above, was advanced by Bijai Ram, father of the plaintiff, to a firm styled 'Bhandari Bijai Ram Kashi Ram and Company'', consisting of Kashi Ram, his father, Bijai Ram, Daya Ram, Jai Ram and Ganga Ram. The said amount, it was contended, was duly entered in the Bahis of the firm. Under those circumstances, the defendants pleaded that the suit was incompetent as there had been no settlement of account between the partners.

3. The trial Court (Subordinate Judge, first class, Bilaspur) dismissed the suit, holding that the amount in question was but one item in the partnership account. Thereupon, Kashi Ram came up in appeal to this Court. Here, too, it was held that the sum sought to be recovered was but one item in the partnership account and, therefore, unless and until the accounts between the partners were settled, it could not be recovered by a suit like the present one. Consequently, the appeal was dismissed. It is against this decision that the petitioner wishes to appeal to the Supreme Court.

4. The value of the subject-matter in dispute,admittedly, is less than Rs. 20,000/-. It is, therefore, common ground that an appeal to the Supreme Court would not lie, unless this Court certifies that the case is a fit one for appeal to theSupreme Court.

5. Learned counsel for the petitioner argued that this Court has not interpreted the bond, Ex. P-1, executed by Jai Ram on 19-3-1993 B. correctly. According to Mr. Awasthy, the sum in question (Rs. 5,000/-) had nothing to do with the partnership assets. I was requested to hold that it was a personal loan to Jai Ram. Learned counsel for the respondents pointed out that the finding of this Court was that although the language of Ex. P-1 was cumbersome, nevertheless, so much was clear that the money in question was expressed as having been advanced by the plaintiff to the firm, through Jai Ram, for the wood sawing business carried on at Kulu, on behalf of the firm. This was a finding of fact and I am unable to see that it involves any special feature, which would render it a fit case for appeal to the Supreme Court.

6. In the next place, learned counsel for thepetitioner urged that a presumption adverse to thedefendants should have been drawn, because JaiRam failed to enter the witness-box. This pointwas considered in detail by the Court while disposing of the appeal. After referring to the rulingscited by the appellant's counsel, I had mentionedthat Mr. Tek Chand, for the defendants-respondents, frankly conceded that his clients had beenill-advised in withholding Jai Ram. At the sametime, he pointed out that Jai Ram's testimony wasnot indispensable and since the transaction hadbeen recorded in the bond, Ex. P-1, it could not bealtered.

In that connection, he had invited my attention to the provisions of Section 114 of the Evidence Act, Illustration (g), as well as the decision of their Lordships of the Federal Court in Emperor v. Sibnath Banerjee, AIR 1943 FC 75 (A). This Court then stated that had the defendant's case rested mainly on the testimony of Jai Ram, then such a presumption could validly be drawn. In the present case, there was not only the bond, Ex P. 1, but also the extracts, Exs. C. W. 3/1 and C. W. 3/2, as well as the oral evidence of the parties. Under those circumstances, I refused to draw a presumption against the defendants and such refusal was in accordance with the law on the subject.

7. The next ground urged by the learned counsel for the petitioner is that this Court has erred in relying upon Exs. C. W. 3/1 and C. W. 3/2. It was argued that these documents did not come from proper custody &, therefore, should not have been relied upon, in the absence of the originals. This point was considered by me while disposing of the appeal. I had pointed out that an application under Order 11, Rule 2 was put in by the defendants requesting the trial Court to direct the plaintiff to produce the account-books. In reply to that application, an affidavit was filed by the plaintiff to the effect that the account-books were in the possession of the defendants and the former Munim, Paras Ram. It was Paras Ram, who then appeared as a defendant's witness and produced extracts Exs. C. W. 3/1 and C. W. 3/2, showing that the sum of Rs. 5,000/- was credited to the account of the firm. In the course of his statement, Paras Ram added that the said sum was spent over the business of the firm. Paras Ram was not cross-examined by the plaintiff and in the absence of any Inherent improbability in his statement, I held that it must be accepted. This was in accordance with the decisions reported in Karnidan Sarda v. Sailaja Kanta Mitra, AIR 1940 Pat 683 (B) and Velu Pillai v. Paramanandam Yesudasan, AIR 1954 Tra-Co. 152 (C). I fail to see, under these circumstances how a certificate, as prayed for. could be granted on this score.

8. Lastly, it was contended that this Court had erred in holding that the plaintiff could not recover the sum in question from Jai Ram unless and until the partnership accounts, were settled. I had arrived at this conclusion, after finding on facts, that the sum of Rs. 5,000/- was a part of the partnership asset and was not independent of it. In view of that finding of fact, it followed logically that the suit in the present form was incompetent. Learned counsel's arguments were directed against the findings of fact arrived at by this Court and not against the application of law to any set of facts. I am, therefore, of the opinion that this is not a fit case for appeal to the Supreme Court.

9. It may not be out of place, in this connection, to cite a few rulings: (a) Mathura Kurmi v. Jagdeo Singh, AIR 1928 All 61 (D) where Mears C. J., and Lindsay, J., observed that:

'In these circumstances, we do not think that the application of well-defined legal principles to a particular set of facts raises any question of law which can fairly be described as substantial. The case does not, in our opinion, fulfil the requirements of Section 110, Civil P. C. Nor is it a case which we could certify as being otherwise fit for appeal to His Majesty.'

(b) The above decision was followed in Mt. Umrao Bibi v. Ram Kishen, AIR 1931 Lah 753(2) (E).

(c) Kanahaya v. Kundan AIR 1954 Him Pra 81 (F). There, the dispute was regarding Pujari rights of a village temple. There, after referring to various authorities, including Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras, AIR 1949 PC 156 (G), Balasubramania and Co. v. Radhakrishnamurthy, AIR 1949 Mad 741 (H), Dwarka Das Kedar Bux v. Gajanan Jagannath, AIR 1946 Cal 10 (I), Governor General in Council v. Jallan & Sons Ltd., AIR 1949 EP 370 (J)., I had held that the dispute in question was not a matter of public and general importance and, consequently, I had refused to certify that the case was a fit one for appeal to the Supreme Court.

10. On the same analogy, it can be said here that the various matters that arose for decision were questions of fact which were decided in accordance with the relevant well established legal principles. I am unable to see that this case involves any matter of public and general importance. As already pointed out, in the opening portion of this judgment, the value of the subject-matter of the suit was far less than Rs. 20,000/-.


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