Rajasthan High Court - Jaipur
Sohanlal And Ors. vs Gulab Chand on 7 May, 1965
JUDGMENT Jagat Narayan, J.
1. These connected appeals arise out of a suit for recovery of goods in specie or in the alternative for damages.
2. The suit (No. 297 of 1950) was instituted in the court of Civil Judge, Ratangarh, on 20-7-1950 by Chandmal against Hazarimal, Sohanlal, Bhanwarlal and Surajmal. The facts necessary for the disposal of the present appeals are these. The case of the plaintiff was that the defendants were partners in a partnership firm Gauri Shankar Sohanlal of Karanpur which had closed its business. It was alleged that the plaintiff purchased 176 bags of gur weighing 352 mds. on Chet Sudi 13. Section 2002 through this firm of the defendants and kept it there for sale, that the defendants sent an account of their dealings with the plaintiff upto Kartik Sudi 1, Section 2002 showing a credit balance of Rs. 9266-4-6 in his favour, that the price of gur was debited to him in this account, but that it had not been sold by the date upto which the account was sent and that on 15-6-1946 the plaintiff served a notice on the defendants (asking them to pay the price of the gur?). On that date the market rate of gur was Rs. 13 per maund and the price of 352 mds. of gur had been claimed at that rate in the plaint. Further it was alleged that the plaintiff asked the defendants several times (to pay the price of the gur or return it in specie?), but they kept on asking for time and finally on 1-7-1950 defendants Nos 1 to 3 made a refusal and hence the suit was being instituted. Hazarimal and Bhanwarlal filed a written statement in which they asserted that they were not partners of the firm Gauri Shankar Sohanlal and had nothing to do with the transactions in suit. They denied all the allegations made in the plaint. Hazarimal died during the pendency of the suit and Dhanraj, Champalal, Jiwanmal and Shiv Bhagwan were impleaded as his legal representatives. These legal representatives filed a written statement similar to that filed by Hazarimal and Bhanwarlal.
3. Sohanlal was served, but he did not appear to contest the suit. The suit proceeded ex parte against him.
4. Surajmal filed a separate written statement. He admitted that he was a partner of the firm Gauri Shankar Sohanlal. He also admitted that this firm purchased 176 bags of gur on behalf of the plaintiff and stored it, that the price of gur was debited to the plaintiff, that an account of transactions upto Kartik Sudi 1, Section 2002 was sent by the firm to the plaintiff in which the price of the gur was debited to him and that this account showed a credit balance of Rs. 9266-4-6 in his favour and that the gur had not been sold till then. He asserted however that the gur was sold in accordance with the instructions of the plaintiff at Rs. 10-2-0 per maund for Rs. 3452-6-6. Further he alleged that the firm Gauri Shankar Sohanlal carried on business at Sri Ganganagar also and that Chandmal entered into transactions through the agency of the firm at Ganganagar in which he incurred losses as a result of which Chandmal owed a sum of Rupees 7212-12-9 to the firm.
5. One Shri Suleman, a clerk of the Civil Judge's Court was appointed as guardian ad litem of Shiv Bhagwan and he filed a written statement on his behalf denying his liability. He did not admit any of the allegations made in the plaint and asserted that he had no knowledge of the transactions in suit.
6. Chandmal died during the pendency of the suit and his son Gulab Chand was impleaded as a plaintiff in his place.
7-13. The following are the relevant issues framed by the trial Court:
Issue No. 2. Is the plaintiff entitled to the price of 352 mds. of gur at Rs. 13 per maund.
Issue No. 4. Did the plaintiff get the amount due to him as price of gur adjusted against his account with me Ganganagar firm?
Issue No. 6. Are Bhanwarlal and the legal representatives of Hazarimal liable?
The trial Court held that the gur was sold for Rs. 3452-6-6 at Rs. 10-2-0 per maund as alleged by the defendants. It held that this amount was adjusted against losses incurred by the plaintiff in his dealings with the Ganganagar firm. Further that only Sohanlal and Surajmal were the partners of the firm Gauri Shankar Sohanlal and not the other defendants. Lastly it held that the suit was barred by limitation under Article 47 of the Bikaner Limitation Act corresponding to Article 89 of the Indian Limitation Act. (After dealing with question of limitation and burden of proof, his Lordship proceeded).
14. Coming now to the other findings of the learned Civil Judge the lower appellate court has accepted the finding that the gur was sold for Rs. 3452-6-6. But the other finding mat the amount was adjusted towards losses incurred in the Ganganagar firm was not accepted by it. In order to prove the alleged transactions carried on by the plaintiff with the Ganganagar firm Surajmal defendant only produced the Khata of the Ganganagar firm. This Khata does not give details of all the entries. It refers to pages of the Naqal Bahi and Rokar Bahi. These two Bahis were not produced before the trial Court. The learned Civil Judge however relied on the entries made in the Khata which were unsupported by the original entries made in the Naqal Bahi or the Rokar. The lower appellate court was of the opinion that the Khata was not admissible under Section 34 of the Evidence Act. The contention on behalf of the appellants is that this finding is erroneous. The learned counsel for the respondent has supported the finding relying on the decision in Chandi Ram v. Jamini Kanta, AIR 1952 Assam 92. The learned counsel for the appellants has on the other hand relied on the decisions in the Deputy Commr. of Bara Banki v. Ram Parshad, (1900) ILR 27 Cal 118 (PC) and Maung Sit v. Ma Su, AIR 1917 Low Bur 39 (2).
15. I am of the opinion that a Khata Bahi is certainly a book of account, and if it is maintained in the regular course of business it is admissible in evidence under Section 34 of the Evidence Act. But what weight can be attached to the entries in the Khata when the original entries on which they are based are not produced is quite a different matter. The lower appellate court was of the opinion that no reliance can be placed on the entries in the Khata which have not been supported by corresponding entries in the Rokar and Naqal Bahi, I agree with this opinion. I accordingly hold that the lower appellate court rightly held that it had not been proved that any loss was incurred by the plaintiff in his dealings with the Ganganagar branch of the firm Gauri Shankar Sohanlal against which the amount of Rs. 3452-6-6 could have been adjusted.
16. If it had been shown that the plaintiff incurred losses in the Ganganagar firm the defendants would certainly have been entitled to an equitable set off to the extent of the losses as held by their Lordships of the Privy Council in Official Trustee of Madras v. Sundaramurthi, AIR 1921 PC 103.
17. The next contention on behalf of the appellants is that there is no satisfactory proof on record that Hazarimal and Bhanwarlal were partners of the firm Gauri Shankar Sohanlal. The trial Court held that Hazarimal and Bhanwarlal were not partners in this firm, but the appellate court held otherwise. The finding of the appellate court is one of fact and is duly supported by the evidence on record. It cannot be interfered with in second appeal.
18. So far as Surajmal is concerned the case against him is proved by his own admission contained in the written statement and by the evidence produced by him in court. So far as Surajmal's admission in the written statement is concerned the contention on behalf of the appellants is that it is not open to the court to accept a part of what he has alleged in the written statement and reject the rest. Reliance is placed in this connection on the following decisions:
M. M. Essabhoy v. M. Haridas, AIR 1915 PC 2; Gangaram v. Hetram, AIR 1965 Raj 47.
In both the above cases the admission itself was a conditional one and it was held that a conditional admission in a pleading cannot be so dissected as to accept a part and reject the rest. It must be either accepted subject to the condition or not accepted at all. The allegation about the purchase of gur was made to para 4 of the plaint and was admitted by Surajmal in Para. 4 of his written statement unconditionally. The allegation that an account was sent upto Kartik Sudi 1, Section 2002 in which a credit balance of Rs. 9266-4-6 was shown in favour of the plaintiff and that the price of the gur was debited to him in this account but the gur which had been purchased had not been accounted for in it was made in Para. 6 of the plaint. This allegation was admitted by Surajmal in Para. 8 of his written statement unconditionally. In Para. 13 of his written statement Surajmal alleged that the credit items of Rs. 9265-4-3 due in favour of the plaintiff in the account upto Kartik Sudi 1, Section 2002 and the credit item of Rs. 3452-8-6 which fell due to him on 8-5-1946 by the sale of the gur were adjusted against losses incurred by him in the Ganganagar firm with the result that a sum of Rs. 7212-12-9 was due to the firm from the plaintiff. This was an independent allegation which did not qualify the admission made in Paras. 4 and 6 of the written statement.
19. I accordingly hold that the lower appellate court rightly decreed the suit against Surajmal for Rs. 3452-6-6 principal and Rs. 800 interest.
20. Next it is contended that there is no evidence on record to justify the passing of any decree against Bhanwarlal or Sohanlal. In my opinion the admissions made by Surajmal in his pleadings as well as in the evidence given by him in court are admissible against me other co-defendants under Section 18 of the Evidence Act, the relevant part of which runs as follows:
Admission by parly interested in subject-matter "Statements made by --
(1) persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested; ..................................
are admissions, if they are made during the continuance of the interest of the persons making the statements."
21. Surajmal, Sohanlal and Bhanwarlal were partners in the firm Gauri Shankar Sohanlal and are jointly and severally liable so far as the liabilities of that firm are concerned. They have thus the same pecuniary interest in the subject-matter of the present suit even though the firm might have been dissolved this interest is still continuing. The admissions of Surajmal are thus admissible under Section 18 of the Evidence Act against Bhanwarlal and Sohanlal.
22. The above principle embodied in Section 18 of the Evidence Act is a principle of common law of England. I may here refer to the following extracts from Taylor on Evidence, Twelfth Edition, Vol. I:
Para 740: "With respect to the person whose admissions may be received, the general doctrine is that the declarations of a party to the record, or of one identified in interest with him, are, as against such party, receivable in evidence, but, if they proceed from a stranger who is still living, they are almost uniformly rejected, and, though he be dead, they cannot in general be admitted, unless upon some of the special grounds already considered Para 748. "When several persons are jointly interested in the subject-matter of the suit, the general rule is that the admissions of any one of these persons are receivable against himself and fellows, whether they be all jointly suing or sued, or whether an action be brought in favour of or against one or more of them separately, provided the admission relate to the subject-matter in dispute, and be made by the declarant in his character of a person jointly interested with the party against whom the evidence is tendered....."
Para 750. "To render the admission of one person receivable in evidence against another, it must relate to some matter in which either both were jointly interested, or one was derivatively interested through the other. A mere community of interest will not be sufficient. Thus, the admission of a servant of a negligent act, unless such admission is part of the res gestae, is no evidence against his master. ......"
Para 753. "An apparent joint interest is obviously insufficient to make the admissions of one party receivable against his companions, where the reality of that interest is the point in controversy. A foundation must first be laid, by showing, prima facie, that a joint interest exists. ......."
Para 754. "In general, the statement of defence made by one defendant cannot be read in evidence either for or against his co-defendant. Neither can the answer to interrogatories of one defendant be read in evidence excepting against himself The reason is that, as there is no issue between the defendants, no opportunity can have been afforded for cross-examination, and, moreover, if such a course were allowed, the plaintiff might make one of his friends a defendant and thus gain a most unfair advantage. But this rule does not apply to cases where the other defendant claims through the party whose defence is offered in evidence, nor to cases where they have a joint interest, either as partners or otherwise in the transaction."
23. In Kowsulliah Sundari Dasi v. Mukta Sundari Dasi, (1885) ILR 11 Cal 588 the admission made by one co-sharer was treated as evidence against the other co-sharer. Reliance was placed on the rule laid down in Taylor on Evidence, Vol. I, First Edition, Para. 525. which is now contained in Para. 743 quoted above.
24. In the headnote of the ILR report Section 18 of the Evidence Act is mentioned. The above rule was eited with approval in Meajan Matbar v. Alimuddi Mia, ILR 44 Cal 130: (AIR 1917 Cal 487) and in Ambar Ali v. Lutfe Ali, ILR 45 Cal 159: (AIR 1918 Cal 971).
25. The part of Section 18 of the Evidence Act referred to above was relied upon in admitting the evidence of the co-defendants in Tikoo Ram v. Jhabar, ILR (1960) 10 Raj 6, Dileshwar Ram Brahman v. Nohar Singh, 48 Ind Cas 193: (AIR 1918 Nag 41), and Harihar v. Naba-kishore, AIR 1963 Orissa 45.
26. On behalf of the appellants the decision of their Lordships of the Privy Council in Amirtolal Bose v. Rajoneekant Mitter, (1874) 2 Ind App 113 (PC) was referred. The facts of that case are distinguishable. The suit was brought by a daughter's son to recover his maternal grandfather's share in the ancestral estates from his maternal aunts and the heirs of his maternal grand uncles. The maternal aunts filed a petition admitting the plaintiff's title as heir. But the heirs of the maternal grand uncles contested the suit on various grounds. It was held that the admission of the maternal aunt was not admissible against the heir of the maternal grand uncle. It is clear that the interest of the two were not identical and therefore the rule laid down in Section 18 of the Evidence Act referred to above and in Para 743 of Taylor on Evidence is not attracted (See Para. 750 of Taylor on Evidence in this connection). The other decisions relied upon by the appellants are also distinguishable. In Dina Nath v. Sayad Habib, AIR 1929 Lah 129 a suit for damages for publishing a defamatory article was brought against the proprietor, printer and publisher. The printer and publisher admitted that the person sued as proprietor was in fact the proprietor of the paper. No evidence was produced by the plaintiff to prove this fact. It was held that the admission of the printer and publisher was not admissible against the proprietor. Here again the interest of the two defendants were not identical. There was only a community of interest between them. The admission of one was thus not applicable against the other. In Narindar Singh v. C. M. King, AIR 1928 Lah 769 the suit was brought for damages for a libel published in the issue of a certain newspaper against three persons--Narindar Singh the alleged publisher, Abdur Rahman, the alleged printer, and Pratap Singh, the alleged editor. It was held that the admission of Abdur Rahman made in his written statement could not be treated as evidence against the alleged publisher or the alleged editor. Although there was a community or interest in the defendants their interests were not identical. For the application of Section 18 it is necessary that the interest should be identical.
27. Lastly it was contended that the oral and documentary evidence produced by Surajmal in court cannot be treated as evidence against the co-defendants because they could not have cross-examined him. I am unable to accept this contention. In Kirmany and Sons v. Aga Ali Akbar, AIR 1928 Mad 919 the witness of one defendant did not make a statement which might have injured the interest of the co-defendants. This decision is therefore of no help. In all commentaries on the law of evidence the view has been expressed that if the witness of a defendant makes any statement which is injurious to the co-defendants they have a right to cross-examine him.
Sarkar on Evidence, Eighth Edition, p. 1141.
"No special provision is made in the Evidence Act for the cross-examination of the co-accused's or co-defendant's witnesses. But the procedure to be adopted may be regulated by the well-known rule that no evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine witness called by one whose case was adverse to his, or who has given evidence against him. If there is no clash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination."
Principles and Digest of the Law of Evidence by M. Monir, Third Edition, p. 1114.
"A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue joined between them."
Phipson on Evidence, Tenth Edition, Para. 1538.
"A defendant may cross-examine a co-defendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue joined between them."
28. As the admissions contained in the oral and documentary evidence produced on behalf of Surajmal are admissible in evidence against the co-defendants under Section 18 they had a right to cross-examine him. They did not put a single question to Surajmal in cross-examination to show that the admissions made by him in his pleadings or in court were not true.
29. I accordingly decree the suit for Rs. 3452-6-6 principal and Rs. 800 interest against Sohanlal and Bhanwarlal also.
30. The result is that in S.B. Civil Regular Second Appeal No. 148 of 1961 the appeals of Bhanwarlal, Sohanlal and Surajmal are dismissed and the appeals of the remaining appellants are allowed. Civil Miscellaneous Appeal No. 23 of 1963 filed by Shiv Bhagwan is allowed.
31. In the circumstances of the case, I direct that parties shall bear their own costs of these proceedings throughout.
32. Leave to file special appeal is prayed for by both the parties and is granted.