Akbar Zaman Khan and Others vs Sheo Parshan Lal and Others

Chamier, C.J.—This appeal arises out of a suit brought by the respondent Sheo Parshan Lal upon a mortgage made in his favour on October 2nd, 1900, by one Karar Haider. The mortgage was in fact made in favour of Sheo Parshan Lal and his brother Adit Prasad but it is admitted that upon a partition the mortgage fell to the lot of Sheo Parshan Lal. Previous to the mortgage in suit Karar Haider had mortgaged the property to one Ajit Das for Rs. 799. In paragraph 11 of his plaint the plaintiff alleged that defendant No. 11 was a servant and dependant of Karar Haider and his brother Muhammad Haider, that the mortgage in favour of Ajit Das had been paid off and that there was nothing remaining due on that mortgage but notwithstanding that a deed of sale had been caused to be executed by Ajit Das in favour of defendant No. 11 and further that a deed had been caused to be executed by defendant No. 11 in favour of defendant No. 10 in respect of 12 annas of the amount due on the mortgage in favour of Ajit Das, that both the transaction in favour of defendant No. 11 and the transaction in favour of defendant No. 10 were without consideration and had been carried out in order to preserve the property for the benefit of the mortgagor Karar Haider, Karar Haider put in a written statement in which he pleaded that he had executed a bai-bil-wafa in favour of bis brother Muhammad Haider and that the latter had paid off the mortgage in favour of Ajit Das. Defendant No. 11 pleaded that he had purchased all the rights of Ajit Das and that the document executed by Ajit Das in his favour was for the consideration stated therein, namely Rs. 2,475 and that he had transferred a 12-annas share in the mortgage to defendant No. 10 for the consideration stated therein, namely, Rs. 7,500. The plaintiff attempted to prove that the money due on the mortgage held by Adjit Das was paid to Ajit Das on April 19th, 1905. He caused the heir of Ajit Das to produce in Court an account book which contains an entry to the effect that on August 19th, 1905, Rs. 799 were paid to Ajit Das on account of the principal sum secured by the mortgage and Rs. 201 on account of interest outstanding on the mortgage. The plaintiff also gave evidence himself and produced other witnesses who said that they had been informed by persons who must have known the facts that the money had been paid to Ajit Das. We have examined the account book which was produced and we have no doubt whatever that the entries relied upon are interpolations. They appear below the total of the credits for a period of 15 days, That total has been reduced by Rs. 1,000 by a simple alteration in one of the figures and below that total appear the entries upon which the plaintiff relies. The entries are obviously forgeries. The oral evidence also produced by the plaintiff is worthless. He has certainly failed to prove by direct evidence that the mortgage of Ajit Das was paid off on April 19th, 1905. But it is common ground that Ajit Das was paid off some time in 1905. According to defendants Nos. 10 and 11 he Was paid off on June 24th, 1905, when he transferred his mortgage to defendant No. 11. The plaintiff has, in my opinion, succeeded in establishing the facts which show beyond any reasonable doubt that the deed executed by Ajit Das in favour of defendant No. 11 was supported by no consideration and was brought into existence for the protection and benefit of Karar Haider. The plaintiff has proved that in and before June 1905 Karar Haider was in serious financial difficulties. The whole of his property appears to have been under mortgage and his creditors were closing round him. Then it is proved that defendant No. 11 is a tenant of Karar Haider and his brother and defendant No. 11 has himself admitted in the witness box that the produce of the land held by him as a tenant is barely sufficient for his own maintenance. Defendant No. 11 has on at least one occasion previously given evidence for defendant No. 2. According to his own account defendant No. 11 took a transfer of the mortgage of Ajit Das without having made any enquiry as to the value of it although he had no previous transactions with Ajit Das. Defendant No. 11 has been obliged to admit that on one occasion he described himself as a karpardaz of defendant No. 1. It is clear that whoever paid off Ajit Das it was not defendant No. 11. Farther than this it is quite clear that the transfer of a 12-annas share in the mortgage by defendant No. 11 to defendant No. 10 was a mere sham. Defendant No. 10 in 1909 became the general agent of Karar Haider. He was called upon to produce his power-of-attorney and he then said that it was no longer with him having been cancelled shortly after it was given to him. The explanation is not convincing and it is curious that defendant No. 10 who has or ought to have a much greater interest in defending the suit than defendant No. 11 did not appear. He waited until the suit had been decided and he then put in an application saying that he had received no notice of the suit. That application was dismissed. There was an appeal to this Court and we agreed with the Court below that the allegations of defendant No. 10 were false, that he had been duly served with notice of the suit, and that he had deliberately abstained from appearing in it. There can, I think, be no doubt that these tactics were resorted to in order to prolong the trial of the present ease and allow the mortgagor to retain possession of the property. It is also to be noticed that although Karar Haider pleaded that his brother had paid money to Ajit Das the brother stayed away and like defendant No. 10 falsely alleged that he had received no notice of the suit. The object of this, no doubt, was to put off for as long a period as possible the decision of the suit.

The plaintiff established facts more than sufficient to require defendants Nos. 10 and 11 to show that they had acquired Ajit Das'' mortgage for consideration. They gave no evidence worth the name and I entirely agree with the Subordinate Judge that there Was no real transfer of Ajit Das'' mortgage to defendant No. 11 or by defendant No. 11 to defendant No. 10. Next it was contended that we should set aside the judgment and decree of the Subordinate Judge upon the appeal of defendant No. 7.

Defendant No. 7 was a man named Syed Hasan. When the peon took a copy of the plaint to the village in which Syed Hasan was supposed to live he failed to find him and he reported that Syed Hasan was a Sub-Registrar and was living elsewhere. He, therefore, attached a copy of the plaint and notice of the suit to a house and came away. It is quite clear that there was no proper service of a copy of the plaint on Syed Hasan. In January 1913 when the trial was coming to an end some of the defendants put in a petition saying that Syed Hasan was dead. The plaintiff at first took no notice of this petition but subsequently he put in an application asking the Court to bring on the record the names of the widow and daughter of Syed Hasan, admitting that he had discovered that Syed Hasan had died. He also alleged that he had no notice whatever of the death of Syed Hasan until the defendants put in their petition. The informality or irregularity in the service of notice on Syed Hasan had been overlooked and neither the Court nor the plaintiff seems to have thought any more about Syed Hasan until some of the defendants alleged that he had died. On the application of the plaintiff the Court made the heirs of Syed Hasan defendants to the suit in his place and gave those heirs an opportunity of giving evidence in the suit. They failed to avail themselves of that opportunity. They asked for further time and the Court declined to give it. In the meantime the Court had gone on to dispose of the suit and it passed a decree in favour of the plaintiff against several defendants including Syed Hasan. There can be no doubt that the procedure of the Court was most irregular but the heirs of Syed Hasam have not in any way been prejudiced by the irregularity and in my opinion the decree of the Subordinate Judge should not be set aside merely on account of this irregularity. It is evident that Syed Hasan''s heirs have no defence whatever to make to this suit.

Lastly it was contended that the suit was barred by Section 10 of the Civil Procedure Code. That section provides that no Court shall proceed to the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, whether such suit is pending in the same or any other Court in British India having jurisdiction to grant the relief claimed. The rest of the section is not material for our present purpose. It is said that shortly before the plaintiff filed his present suit a suit was brought in another Court on their mortgage by Jai Kishen and Akbar Zaman who are defendants Nos. 10 and 11 to the present suit. While the suit was pending in the Court of the Subordinate Judge no proper evidence was produced for the purpose of showing that the suit of Akbar Zaman and Jai Kishen was instituted before the present suit or to prove that Section 10 of the CPC was in any way applicable. The only references that I can find to the other suit are in the depositions of the plaintiff and defendant No. 11. One admitted that there was another suit but could not say whether it was filed before or after the present suit and the other admitted that there was another suit but said nothing about the date on which it was filed. There was no evidence before the Subordinate Judge, and before us is no evidence that the other suit was instituted before the present suit or that the matters in issue in the present suit are directly and substantially in issue in the other suit. It is established beyond any doubt that if a person sets up a plea of res judicata it is his business to produce before the Court such documents as may be necessary to bring the case within Section 11 of the Code. Similarly, in my opinion, if a defendant to a suit wishes to show that the further trial of the suit is barred by Section 10, it is his business to produce before the Court such documents as will satisfy the Court that Section 10 is applicable. The trial in the Court below proceeded without objection, and I would decline to allow any further evidence to be given here for the purpose of showing that Section 10 might have been applied to the case. For these reasons I would dismiss the appeal but I would make no order as to costs in view of the conduct of the plaintiff with reference to the account book of Ajit Das.

Roe, J.

I agree.