Bhagwandass vs Banshidhar

Jagat Narayan, J.—This is a defendant''s revision application u/s 25 of the Provincial Small Cause Courts Act against ex parte decree passed by the Judge, Small Cause Court, Ratangarh.

The first ground is that the learned Judge erred in proceeding with the suit ex parte and that the suit should be remanded so that the applicant may have an opportunity of cross examining the witnesses of the plaintiff and of adducing his own evidence. 17-11-1953, was fixed for the evidence of the plaintiff. On 14-11-1953, an application for adjournment was made on behalf of the defendant. No order was passed on this application. On 17-11-1953, the defendant did not appear. The court proceeded ex parte against him. The evidence of the witnesses of the plaintiff was recorded on that very day and arguments were heard on 18-11-63. Judgment was pronounced on 28-11-53. It was open to the applicant to have applied for setting aside the ex parte decree. He did not avail of that remedy. I am not prepared to interfere in revision on that ground in the circumstances of the present case.

The next point urged is that the suit was not of a small cause nature being excluded under Article 31 of the Second Schedule from its cognizance. The question for determination is whether the present suit is an account suit within the meaning of Article 31. The case of the plaintiff is that acting as the agent of the defendant he received a consignment of 100 bags of wheat on 20-7-51 and 50 bags of barley on 8-8-51 from him and sold them on his behalf on commission basis.

He paid a sum of Rs. 6300/- to the defendant through two Hundis and claimed a decree for Rs. 182/14/3 on the allegation that the amount spent by him on railway freight and the amount due to him as commission came to Rs. 433. The allegation of the defendant was that several similar other trans actions took place between the parties and that ac counting had not yet been done. There is however no evidence on record to show that any other trans action besides the two in suit took place between the parties.

On behalf of the applicant the cases of K.K. Abdul Rahiman Rowther Vs. M.J. Jamalluddin Sahib and Co., Mariappa Nadan v. Aruna-chalam Chetty, 33 Ind Cas 16 : (AIR 1917 Mad 476) (B), and Smt. Gurudasi Devi Vs. Chandi Charan Kundu and Another, were cited. In the first two cases it was held on facts that it was necessary to take accounts and on that findings the Courts came to the conclusion that the suits were account suits within the meaning of Article 31. In the last mentioned case the plaintiff himself had asked for an account from the defendant. This is not the case here.

These cases are therefore distinguishable. On behalf of the respondent four cases viz. Mahadevi alias Kunhi Thampuratti styled Manaviyathen, the present Valiya Thampuratti of Ambati Kovilakam Vs. P.P. Sankara Menon, AIR 1948 80 (Oudh) Rajiva Narayan Sahay v. Kirat Nara-yan Singh, 43 Ind Cas 755 : ( AIR 1917 Pat 121) (F), and Kshetra Nath Bhuiya v. Kalidasi Dasi 41 Ind Cas 929 : (AIR 1918 Cal 1037) (G), were cited. These cases are applicable to the facts of the case before this Court. It is clear on the authority of these cases that the suit brought by the non-petitioner is not an account suit within the meaning of Article 31 of the Second Schedule of the Provincial Small Cause Courts Act.

There Is no reported case of our High Court on the point. The principles deducible from the reported cases appear to be these. Where the plaintiff prays in the plaint that the defendant be asked to render accounts and brings a suit for an indeterminate amount then the suit is clearly one falling under Article 31 of the Schedule. If on the other hand the plaintiff sues for a specific sum of money and it is the defendant who alleges that the suit falls under Article 31 then before the Court can hold that it does so, the defendant must prove to its satisfaction firstly that other transactions besides those in suit have taken place between the parties, secondly that the plaintiff is liable to render account to the defendant and thirdly that the suit cannot be disposed of satisfactorily without taking accounts.

As has already been mentioned above although the second condition is satisfied in the present case the first and the third conditions are not fulfilled. It is therefore not an account suit within the meaning of Article 31.

Lastly, it was argued that the plaintiff had not proved that 5 bags of barley had been sold. The plaintiff appeared as a witness and stated that he had sold all the bags and in support of this statement he filed entries from his account books which were duly proved. The learned Judge believed the statement of the plaintiff and there can be no interference in revision with this finding of fact.

I accordingly see no reason to interfere in revision and reject the application with costs.