Baldev Sahai vs Nemi Chand

Kapur, J.—This is a plaintiff''s appeal against the judgment and decree of Subordinate Judge, First Class, Gurgaon, dismissing the plaintiff''s suit. The facts which have given rise to this appeal are, that on 24th May 1940, Baldev Sahai, plaintiff, borrowed Rs. 10,000 from the defendant, Nemi Chand, by pledging his ornaments. The interest according to the plaintiff was agreed at the rate of 0-6-0 per cent per mensem. On 18th March 1942, Rs. 500 was paid by the plaintiff and on 1st October 1943, one Mutsaddi Lal P. W. 5., paid Rs. 400 and redeemed a gold "Hansali" weighing 11 1/2 or 12 tolas. Plaintiff Baldev Sahai sold his land to one Sunder Lal for Rs. 12,000 on 23rd September 1943. Out of this sum Sundar Lal paid to the defendant Rs. 10,000 on the same day which is evidenced by receipt P. W. l/l, printed at p. 76 of the printed paper book. There is a dispute between the parties as to whether all the ornaments except one, were returned on the day when this sum was paid by Sundar Lal to Nemi Chand or were not returned. On 5th October 1943, a cheque Ex. D. W. 2/1 for Rs. 796-4.0 was given to the defendant, and thus the total amount due, Rs. 11,695 4-0, was paid off by the plaintiff to the defendant.

The plaintiff''s case is that he pledged certain ornaments and borrowed Rs. 10,000 by pledging them. The defendant in his own hand prepared two lists of these ornaments and gave them to the plaintiff, and although payments had been made as given above, the ornaments were not returned to him. Some time in December 1943, the plaintiff sent a notice to the defendant and asked him to return the pledged ornaments to him. This is Ex. P/6 printed at p. 79 of the printed paper book. The defendant states that he did reply to this notice through his counsel-a fact which the plaintiff denied in his plaint, but seems to have given up in his replication. On 10th January 1944, the plaintiff brought a suit for the recovery of the gold ornaments and in the alternative for Rs. 41,591-4-0. He alleged that he pawned the ornaments, a list of which is given in para. 2 of the plaint, weighing 448 tolas and 3 mashas out of which one piece of Hansali was returned. He further claimed that although the weight of the gold was 448 tolas and 5 mashas and there was besides the gold some precious stones and pearls worth about Rs. 8000 which were all pawned with the defendant, the latter put the total weight at 340 tolas and an entry to that effect was made in the bahi of the defendant, that he had paid the whole of the principal amount and interest which was due to the plaintiff, that at the time of the payment of the last item, i. e., Rs. 795-4-0 by cheque, the defendant said he had kept the ornaments at some concealed place and would bring them back and return to the plaintiff. But they were not so returned. The plaintiff claims a sum of Rs. 41,591-4-0 valuing the gold at Rs. 77 per tola which was the prevailing rate on 23rd September 1943, which comes to Rs. 32,718 plus Rs. 8000, the value of the pearls and precious stones.

The defendant denied the plaintiff''s claim and pleaded that the weight of the ornaments pawned with him was not 448 tolas 8 mashas but was 250 tolas. The interest was fixed 0-6-0 p. c. p. m., but on 12th August 1942, as the debt had not been paid, the defendant informed the plaintiff that he would henceforth charge 0- 7-9 p. c. p. m. as interest. The payments alleged in the plaint were admitted. But it was pleaded that on the day when Rs. 10,000 were paid, the defendant returned the boxes containing the ornaments pledged except for his zanjir (gold chain) weighing about 15 tolas which was kept in pawn till Rs. 795-4-0 the amount due on account of interest were paid, and when this sum was paid by means of a cheque the zanjir (gold chain) was returned that very day and nothing was left with the defendant. The rate of gold which was claimed at Rs. 77 per tola by the plaintiff was also denied.

There was a replication by the plaintiff in which he reiterated his allegations with regard to the weight of gold. He submitted that it was agreed to be 340 totals although it was 448 tolas and 3 mashas but 250 tolas had never been agreed upon. The return of the ornaments was denied and the slips containing the list of ornaments which had been pledged and which were in the hands of the defendant and which had been given to the plaintiff at the time of the pledge were emphasised.

The learned Judge framed six issues which re as under:

(1) What was the agreed weight of gold in the pledged ornaments at the time of the pledge ?

(2) Has not the plaintiff received the pledged ornaments even after the full payment ?

(3) What was the market value of the gold in the ornaments on the date of final discharge and on the date of suit ?

(4) What was the market value of any Jarao in the ornaments on the relevant date ?

(5) Is the defendant entitled to special costs under S. 35A, Civil P. C. and how much ?

(6) Relief.

The learned trial Judge in a somewhat curious judgment found that it had not been proved that the weight of gold was 448 tolas and 3 mashas, but relying on the admission of the defendant, he held the weight to be 250 tolas. On issue 2 of return of ornaments he found relying on the statement of the defendant, supported as it is by the account books kept in the usual course of business, that the ornaments were returned. On the question of price of gold, again relying on the statement of the defendant, he held it to be Rs. 72 per tola. He did not allow any special costs and on these findings he dismissed the plaintiff''s suit. Against this decree, the plaintiff has come up in appeal to this Court.

The most important point that has to be decided in this case is whether the defendant had returned the ornaments after the money was paid or not. The learned advocate for the appellant submits that the onus of proving the return of the ornaments should have been placed on the defendant and not on the plaintiff, and it was not for the plaintiff to prove that he had not received the ornaments. For this purpose he has relied mainly on S. 172 read with Ss. 148 and 160, Contract Act. His submission was that after the plaintiff had paid him the money which was due to him, it was the duty of the defendant to return the ornaments to him and the onus should have been placed on the defendant to prove that he had returned the ornaments. I am unable to agree with this contention. According to the S. 102, Evidence Act, the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. The plaintiff has come into Court alleging that he has not received his ornaments in spite of the fact that he had paid off the debt for which they were pawned. This in my opinion is contrary to the course of human affairs and as pleaded by the learned counsel for the defendant, the presumption is not in favour of wrong, but is in favour of right. Referring to presumptions Law-son writes the following with regard to the regularity of the business and unofficial acts :

The presumption is that any act done was done of right and not of wrong (Rule 16). And where a duty is cast upon one by law, that he has performed that duty." See Munir''s Law of Evidence.

If I were to cast the onus on the defendant then I would have to start with the presumption that the defendant did not do his duty of returning the ornaments pawned with him, and that he misappropriated the goods which were entrusted to him for a particular purpose. That in my opinion is not the law, and therefore, I would hold that the onus was rightly placed by the learned trial Judge, but even if the onus is wrongly placed, the circumstances of this case are such that the plaintiff must fail. The main facts to be considered in this case are that according to the plaintiff''s case the defendant was not prepared to lend Rs. 10,000 on the security of anything less than 448 tolas which according to the plaintiff''s bahis is shown as 350 tolas. Then Rs. 400 was paid by Mutsaddi Lal to the defendant on behalf of the plaintiff the Hansali weighing 12 tolas-really 11 tolas was redeemed, which shows that the defendant was prepared to allow partial redemption of ornaments by partial payments.

When Rs. 10,000 was paid to the defendant, according to the case set up by both the parties, the ornaments were not returned there and then. The payment was made in the Tahsil compound. There is some discrepancy between the evidence of the witnesses for the plaintiff and the defendant as to whether the amount was paid before the Naib Tahsildar. But be that as it may, fact remains that Rs. 10,000 was paid on behalf of the plaintiff to the defendant in the Tahsil compound. The story of the defendant is that he, on the evening of that day, returned the ornaments to the plaintiff. This the plaintiff denies. In support of this, the plaintiff has relied on the testimony of P. Ws. 2, 3 and 4. P. W. 2, a servant of Sundar Lal, has said that a little after the receipt of payment of Rs. 10,000 was given by the defendant to the plaintiff, the latter demanded from the former his articles (chizen) and the defendant replied that he would return them in about a week''s time. Of course the witness was unable to say what was meant by the word ''chizen''. This witness is an employee of Sundar Lal who is a first cousin of the plaintiff and it is very doubtful if the plaintiff would make a demand for the return of his ornaments in the presence of this witness because ordinarily people of the status of the plaintiff do not want to disclose that they had pawned their ornaments, P. W. 3, Durga Parshad, who is the scribe of the sale-deed as well as of the receipt Exhibit P. W. 1/2, also supports the plaintiff with regard to the demand of ''articles'' and the reply of the defendant "that it would be returned in about a week''s time."

10-11. An objection was taken to the admissibility of the statements of the witnesses proving the alleged admission of the defendant about his promise to return the ornaments in about a week''s time, and it was submitted that until these statements which were in the nature of defendant''s admissions were put to defendant, they were not admissible in evidence and reliance was placed on Carpenter v. Wall, (1840) 52 R. R. 513: (9 L. J. (N. S.) Q. B. 217) where an action was brought against the defendant for seducing and getting with child the plaintiff''s daughter who appeared as a witness and was asked whether she knew a certain person, A. B. which she denied. A witness for the defence was subsequently asked whether the plaintiff''s daughter had not told him that A. B. was the father of the child and had seduced and left her. On an objection being taken to this question the Lord Chief Justice refused to allow the question to be put. When a new trial on account of the rejection of this evidence was moved, it was held by Lord Denman C. J. :

When words are to be proved as having been uttered by a witness, it is always expected that he shall have an opportunity of explanation; and that rule applies here.

Littledale J. observed that

there is no doubt that these declarations could not be made evidence without first asking the witness if she ever uttered them.

and Patteson J. said :

I like the broad rule, that, where you mean to give evidence of a witness declaration for any purpose, you should ask him whether he ever used such expressions. It is true that the evidence here might have been admissible if intended only to show the utterance of loose language by the party. But the proof offered went in direct contradiction to the evidence she had given, that the defendant was the father of her child.

In AIR 1946 65 (Lahore) Mahajan J. observed :

Apart from these statutory provisions of the Evidence Act, on general principles of law it seems to me that the same proposition must hold good. An admission made by a party in proceedings antecedent to the suit or in letters and documents executed by him is a valuable piece of evidence against the party making those admissions and must be available to his adversary. That principle of law, however, ceases to have any application where the party who has made the previous admissions, goes into the witness box and on oath gives evidence virtually inconsistent with what he had stated previous to the said statement. Before his opponent can be allowed on the basis of the previous admissions to argue that the party in the witness box had perjured himself it is only fair that he is given an opportunity to explain his strange and inconsistent attitude.

In Woodroffe and Amir Ali''s Law of Evidence at p. 1019 it is said :

Any statements, verbal as well as written, may be used for this purpose, (for the purposes of contradiction) but where the statement is in writing the provisions of S. 145, ante, should be followed. In fact, though it is not so expressly laid down as required by the Act in the case of verbal statements, the witness should always, if possible, be specifically asked whether he made such and such a statement before he is contradicted through another witness.

In Bal Gangadhar Tilak v. Shriniwas Pandit, 39 Bom. 441 at p. 461 : (A. I. R. 1915 P. C. 7) their Lordships of the Privy Council observed as follows:

On general principles it would appear to be sound that if a witness is under cross-examination on oath he should be given the opportunity, if documents are to be used against him, to tender his explanation and to clear up the particular point of ambiguity or dispute. This is a general, salutary and intelligible rule.

It is clear from these authorities that if an admission of a party is contained in a document then under S. 145 such an admission is not admissible unless it has been put to the party when he appears as a witness. English authorities seem to go further and would apply this rule even to oral statements and even though the law in India may not go so far as to apply this role of confronting to the extent that it has gone in England, there is no doubt that the weight of authorities seems to be that a witness or a party who appears in a witness box should be given an opportunity to explain any previous statement which he has made and which is contrary to his statement in Court and where this is not done, in my opinion, such previous oral admissions even though not hit by S. 145, Evidence Act, would be of little evidentiary value. And it may be added that it is dangerous to attach a great deal of weight to oral statements of witnesses deposing as to admissions, because in the absence of exact words, it is difficult to know what was meant by the maker of the ad. missions and how they were understood by a witness. Even if this were not the law, the witnesses in this case before whom this alleged admission was made that he, the defendant, would return the ornaments in about a weeks'' time, are not persons on whose testimony I could place a great deal of or any reliance. (After discussing evidence his Lordship proceeded:)

Taking into consideration the natural course of human affairs and the way that this transaction was entered into and partial redemption that took place and also the fact that the defendant was not prepared to trust the plaintiff unless he got a large amount of gold in pledge, it is difficult to believe that the plaintiff was such a trusting person or a simpleton that he was prepared to keep quiet although ornaments of the weight of something like 448 tolas were not returned to him although the major sum of debt had been paid and, at any rate, when the last balance of Rs. 795-4-0 was paid, the plaintiff could not have kept quiet for so long as two months. As I have said above the plaintiff is not a person on whose testimony one can place a great deal of or implicit reliance. From his own mouth he stands condemned with regard to two cases and it appears to me that when Exs. P-1 to P-3 remained in his possession, he made up his mind to take advantage of them and brought this case against the defendant. In my opinion, the case of the plaintiff is not proved and the story of the defendant is more reliable and I accept it.

In the result this appeal fails and is dismissed with costs throughout.

Harnam Singh, J.

I agree in dismissing the appeal with costs throughout.