Harihar Prasad Singh vs Kesho Prasad Singh

Dawson Miller, C.J.—This is an application on behalf of the defendants asking us to interfere under our powers of revision or superintendence with an order of the District Judge of Shahabad, dated the 17th November 1922. The matter has been before the Court on a previous occasion when a somewhat similar application was made asking the Court to interfere with an order made by the predecessor of the learned District Judge and the facts of the case are set out in the order then made which was dated the 1st August 1921. It is unnecessary, therefore, for me to repeat what was stated in the previous order. I may mention, however, shortly that the petitioner is the defendant in a suit instituted by the Maharaja of Dumraon to recover back a large estate in Burma and also the rents and profits of the estate for a period of something like 20 years. The trial occupied many months, hundreds of witnesses, I understand, were called and thousands of documents were put in evidence and one of the main points for decision in the suit was whether the estate belonged to the Maharaja of Dumraon and whether the defendant was merely his agent or trustee for the purpose of managing that estate or whether the estate belonged to the defendant. It was found by the learned Judge that the plaintiff''s contention was right. The defendant was ordered of deliver up the estate and to render an account of his dealings with the property over a number of years. The parties applied to the District Judge sometime in the early part of last year for certain direction as to the manner of taking the account. Various sums belonging to the defendant himself or his father, his predecessor-in-interest, were spent in developing this estate and were put into the property. These were ordered to be credited to him in taking the account. Various rents and profits were received by the defendant in the ordinary course of his duties as manager or agent or trustee, whatever you call him, of this estate. Most, if not all, of these rents were received in kind and from time to time they were converted into money by sale of the paddy or other produce paid by way of rent and one of the questions for determination in taking the account was whether the defendant was liable to the plaintiff merely for the cash equivalent of the produce rents at the date when they were received from the tenants or at the date when actual sales were made. The determination of this question would, no doubt, depend upon considerations of what were the actual terms of the trust or the terms of the defendant''s employment as manager or agent. It was contended, on the one hand, that this duty ended when he had collected the rents and he had no further obligation in the matter. It was contended on the other hand, that it was, part and parcel of his business as an agent, of the plaintiff in Burma not merely to collect the rents and send the cash equivalent home but to sell the produce and for a time, at all events, to reinvest the price so obtained in further development of the property.

When the matter came before the learned Judge, upon the application for directions he ordered that the Commissioner in taking the account should ascertain the actual quantity of produce rent received from the jamubandi accounts kept by the defendant, but in arriving at the cash equivalent he should take the sales of the produce found in what has been called the cash account-books and that he should not ascertain the liability of the defendant by taking the actual market price upon the day upon which the produce was actually received from the tenants. With regard to certain payments made or expenses incurred by the defendant in managing the estate and which apparently he paid out of his own pocket the learned Judge, having directed that he was entitled to recover them, was confronted with the problem as to how the expenses for certain years, 1904 to 1909, should be arrived at, because there were no books showing the actual expenses incurred during those years. He, therefore, directed that in taking the account the expenses for those years should be taken at Rs. 34,400, because that was the expenditure shown for the next preceding year before the period during which there was a gap in the account-books, and the next succeeding year apparently did not show any larger sum spent in expenses at that time. So far as this matter is concerned, it has been contended before us that this direction of the Judge really has the effect of shutting out evidence, and if there is any further evidence upon the record apart from the evidence of the actual expenses for previous years, that ought to be taken into account by the Commissioner in arriving at a proper figure for those years. The question is obviously a difficult one in the absence of any direct evidence and in any case can only be arrived at by some rough and ready method of calculation; but in order to meet any difficulty or any grievance that the defendant may have in this matter Mr. Das on behalf of the plaintiff has very properly consented to allow the Commissioner in taking the account to refer to any further evidence there may be at present on the record and if the Commissioner can from that evidence arrive at any more satisfactory method of determining the expenses for the years in question he shall be at liberty to do so. We were further asked to say that the defendant should also be entitled to have an adjournment of this enquiry in order to get further documents from Burma which, it was said, might and probably would throw some further light on the question. Speaking for myself and having regard to the course which this case has taken, I should certainly have been disinclined even if I had the power to make any such order as that, because it appears that on previous occasions applications were made for further and better discovery of documents in the defendant''s possession. Orders were made and finally an order was passed that the account should be taken upon the documents then upon the record. That was after the defendant himself had sworn in an affidavit or after an affidavit had been sworn on behalf of the defendant that there were no more documents in his possession. But the learned Counsel for the plaintiff has gone further and he has stated that he will not object to a letter written from Burma by Lallu Ram Pande to the Deputy Commissioner of Tanngoo dated the 16th May 1908 being used by the Commissioner for what it is worth in arriving at a decision upon this question of the expenses, just as if it were one of the documents already on the record. That is, I understand, the main document which the defendant wished to procure from Burma. It will not be necessary, of course, to prove the document formally. It will be taken as if it had been written by the person who wrote it but whether, even assuming it proved it is of any evidentiary value or not, or to what extent, will be a matter entirely for the Commissioner to decide.

The only other question is that which I have already intimated which relates to the defendant''s liability to account, that is to say, whether he is liable to pay as the cash equivalent of the produce rents their value at the time when they were actually collected or at the time when the grain was sold. On the previous occasion, where exactly the same question came before us, we refused to interfere in revision mainly upon the ground that it could not be said that the learned Judge had in any way refused to exercise a jurisdiction or had exercised a jurisdiction with any material irregularity. But in considering the question of whether we ought or ought not to interfere under our powers of superintendence we pointed out that, whereas in ordinary circumstances the liability of an agent or trustee might be to account only for the value of the produce at the date at which it was received, there might be in the particular circumstances of this case a liability to account for the actual sums which had been received by the sale of the produce rent at a later period, and, therefore, we were not satisfied upon the evidence before us that the learned Judge had arrived at a wrong conclusion upon this matter. It was intimated at that time that the evidence would in fact show that the liability of the defendant was the larger liability, that is to say, the liability to account for the actual sums received for the produce rent. We pointed out at the same time that not only in this case but in all eases it is desirable that, before ordering an account to be taken, the question of principle involving the measure of liability of the defendant should always be decided and whether the learned Judge in this particular case had given his attention to this particular point or not was not very clear upon the judgment. At all events he had not specifically mentioned it. We further pointed out that it was always permissible to the learned Judge to vary or modify the directions already given if he should be satisfied that some mistake had been made, but we expressly refrained from interfering either under our powers of revision or under our powers of superintendence. It is perhaps quite unnecessary to add that if any mistake has been made in the present case it can be set right upon appeal, but I am not satisfied upon the material placed before me, nor do I think upon that material we could come to any satisfactory decision, that the learned Judge was wrong in estimating the liability of the defendant. At that time when the previous order was made the account had hot taken place and, although we refrained from interfering under our powers of superintendence, we were certainly impressed by the fact that if it could be clearly shown that the learned Judge had gone wrong, which we did not think had been proved in the case before us, but if it could be proved, then there might perhaps be some ground for interfering under our powers of superintendence, because a long and expensive enquiry would take place which, if the Judge were wrong would necessarily be entirely thrown away and would have to take place again. In the present case this application arises out of a subsequent petition placed before the successor of the learned District Judge asking him in effect to re-consider the matter and alter the directions given by his predecessor. The learned Judge, as appears from his judgment, had before him exactly the same arguments as had been urged before his predecessor and, whilst he considered that he had authority to issue directions of a supplementary character or to modify or revise previous directions where the alteration involved no change of principle or in cases where it could be shown that the directions were obviously based upon some misapprehension of fact or were defective in other respects, nevertheless declined to interfere, and one of the main grounds, no doubt, which influenced him in refusing to interfere was the ground that no fresh argument had been adduced before him in addition to those which had been urged before his predecessor. It did not appear to him that his predecessor in making the order which he had made had been influenced by any misapprehension of fact. Had it been so, it is quite possible that the learned Judge might have interfered. He further took the view that it would be wrong at that stage to interfere, because, as matters stood, the Commissioner who had been engaged upon this task since the previous May (the order was made in November) was at that time approaching the completion of his task and he refused to interfere. It is quite clear further from the learned Judge''s decision that the point was argued-before him as to the proper method of assessing the cash value of the produce rents. It does not appear from that judgment nor has anything been said in argument before us to the effect that any farther evidence was placed before the Judge in order to show that his predecessor, Mr. James, had misapprehended the scope of the defendant''s duties, that is to say, so far as they affected his liability to account not merely for the cash value of the produce at the date of receipt but for the cash value at the time of the actual sale. It was open to the parties, had they chosen when they went before the learned Judge on the second occasion, to put before him such evidence as there might be available on the record to show that Mr. James, the predecessor of the learned District Judge, had misapprehended the situation, but apparently nothing of the sort was done.

We are now asked in the present application to set aside or vary or modify that decision. As already stated, we refusal on the last occasion to interfere in any way in revision; nor did we think that our powers u/s 115 of the CPC entitled us to do so in the particular circumstances of the case. The only question, as I hive stated was whether we ought to interfere under our powers of superintendence, but not being satisfied that the learned Judge was wrong we, therefore, refrained. But in the present application not only has it not been shown by anything further which has been brought to light that the learned Judge was wrong but the circumstances are how such that if we were to interfere and order the account to be taken upon an entirely different basis it seems to me that we should be bringing about that very evil which by an order made under our powers of superintendence we ought to endeavour to obviate. There is no reason now why we should interfere on the ground that any irreparable loss will be incurred by the parties, if the Commissioner is allowed to go on and take an account. On the previous occasion this was urged OB the present occasion it has also been urged in the ground set out in the petition for our interference but in fact tae account has practically come to a termination and, therefore, having regard to the fait that where there is a right of appeal the Court, even if it thought that the order complained of was not right, would not interfere unless its interferance were necessary on the ground of avoiding irreparable loss. It follows that the whole foundation upon which the defendants case rests no longer exists. It was urged, however, by Mr. Manuk on behalf of the defendant that apart altogether from this question of avoiding unnecessary delay and expense there is another aspect of the case which ought to be taken into consider action. His contention, one which by the way is not urged as one of the grounds upon which we ought to interfere, is this that if the account is taken according to the method bid down by the learned Judge then he will have to pay or rather he will b# liable to pay a very much larger sum amounting to some lakhs of rupees than he would be liable for if the account is taken according to the principle for which he contends, and, therefore, that if he should wish to appeal from the decision eventually come to he will have to give security for a very much larger sum than would otherwise be the case. He even goes so far as to suggest about this we have no means of coming to any definite conclusion) that the result would be that his client would be ruined and, therefore, would be entirely unable to find funds for prosecuting his appeal. As already stated, this is not one of the grounds upon which he relied in his petition and it is not one which commends itself to me as a reason for interfering and exercising our powers of superintendence even in a case where we should hold the opinion that the learned Judge had arrived at a wrong conclusion. My reason for saying that is that it would be quite improper to lay down any such Rule because in every case or in nearly every case exactly that same principle would apply. Wherever a Judge goes wrong the result always is that one party or the other against whom his decision may operate incurs in the end a larger liability than be otherwise would, and I confess that I have never heard of any such argument being put forward in a case of this nature nor is there any decision which, in my opinion, would entitle us to take this matter into consideration. Moreover, before we arrive at a point at which this consideration becomes necessary at all, we must be satisfied that the learned Judge was wrong in arriving at his conclusion as to the extent of the defendant''s liability. As already stated, I am by no means satisfied upon the materials which have been put before us that the liability of the defendant in this case was merely to account for the actual market cash value of the produce rent at the date when he received it That is a matter which will have to be determined upon consideration of, possibly, many documents and much evidence which is not now before us and it is a matter which could be considered in the event of an appeal, when the matter comes before the Court in appeal and all the documents and all the evidence are before it which will place the Court in a position to arrive at a definite conclusion upon this matter It is sufficient to say that at present I am not satisfied that the foundation of any case has been made which would entitle us to interfere either under our powers of superintendence or under our powers of revision.

One point I ought to notice before concluding my judgment is this that it was stated that neither Mr. James nor Mr. Kingsford had really given his mind to the legal aspect of the case and, therefore, the matter ought to be sent back to be re-heard by the lower Court with directions to consider this question of the liability of the trustee in the particular circumstances of the case. I do not think that it has been shown that either of these judgments, although they do not state in precise terms the legal proposition as it has been argued in this Court, are defective by reason of any failure to deal with the questions which were placed before the Judges. The plain issue between the parties was whether the liability was for the value of the produce rents at the date when they were received or for the cash equivalent at the date when they were sold and this matter was clearly argued on both sides. It was prominent in the minds of the learned Judges on both occasions and, although they do not deal in terms with the legal principle involved or do not say that they determine exactly what the nature of the liability is m all respects, they do not arrive at a conclusion that the liability was to pay according to the cash actually received by the sales and I am not satisfied, although on the previous occasion I had some doubt as to whether this matter had been prominent in the minds of the learned Judges when they came to their decision, that the matter was not in fact dealt with by them. They have decided it, and if they have decided it wrongly that is a matter which could be set right in appeal and no ground, in my opinion, has been made out for interfering in revision.

We were asked to order that an alternative account should be taken. I san see no reason why we should order such an account. Even if an alternative account may be useful in the event of the decision being overruled in appeal, still we should never order an alternative account to be made in anticipation of an appeal being successful. When that occasion arises and when the appeal is determined there will then be plenty of time to consider the question of an alternative account or accounting in a different manner,, should the Court consider that the present account is wrong. In my opinion this application should be dismissed with costs. Hearing fee Rs. 200.

Foster, J.

I agree.