Janeshwar Singh vs Talkeshwar Singh

This appeal under Clause 10 of the Letters Patent of the court is by the defendant.

The plaintiff respondent instituted a suit for recovery of Rs. 9000/- as principal and interest thereon alleging, inter alia, that in January, 1957, there was an agreement between the parties to run a truck business jointly in equal shares. Arcording to the agreement, a truck of the value of Rs. 18,000/- was to be purchased for which each party was to pay half. The defendant was to make purchase of the truck. The plaintiff in the circumstances, according to the terms gave Rs. 9000/- to the defendant, the understanding being that in case the truck was not purchased the defendant would refund the said amount to the plaintiff. The money was paid on 11-1-1957 and it was plaintiffs case that the defendant granted a receipt (Ext. 8), which also stated that in case the truck could not be purchased the amount would be refunded to the plaintiff. No truck was purchased. Thereafter the plaintiff demanded refund of the money but the defendant did not pay the money and went on putting off the matter.

The case of the defendant was that there was no such agreement nor the plaintiff advanced Rs. 9000/- to the defendant. He denied t''o have granted the receipt (Ext. 8). According to him, it was a manufactured document.

The trial court decreed the suit accepting the case of the plainttiff as true and holding the receipt. (Ext. 8) to be genuine. It, however, disallowed the interest before the date of the institution of the suit on the ground that there was no agreement for payment of interest. The defendant then preferred an appeal, which was numbered as Money Appeal No. 32 of 1961. Th appeal was heard by the Additional District Judge, Gaya, who allowed it, holding that the plaintiff was not able to prove his case and that the receipt (Ext. 8) was not a genuine document Against this Judgment and decree the plaintiff preferred Second Appeal to this court, which was numbered as S.A. No. 885 of 1962. It was heard by a learned single Judge of the Court. He did not set aside the finding of the lower appellate court that the receipt (Ext. 8) was not genuine but, at the time, held that the lower appellate court had misread the evidence of the witnesses and found some contradictions which were not there. Accordingly he allowed the appeal, remanded the case to the lower appellate court for fresh hearing in accordance with law and in the light of the observations made by the court. After remand the lower appellate court reconsidered the evidence on the record, excluding Ext. 8, and found that the plaintiff on other evidence on the record was able to prove his case that a sum of Rs. 9000/- was advanced by him to the defendant for purchase of a truck and even though the truck was not purchased, the defendant failed to pay back the money to the plaintiff, as agreed upon between the parties. Accordingly, it confirmed the decree passed by the trial court in favour of the plaintiff. Then the defendant came to this court in Second Appeal No. 793 of 1969 (Pat). This appeal was heard by another learned single Judge of this court. The learned single Judge dismissed the appeal, for, in his opinion, it was not possible for him to interfere when the lower appellate court, on a consideration of the oral evidence, had found as a fact that Rs. 9000/- was advanced by the plaintiff to the defendant The learned single Judge, however, granted leave to file appeal under Clause 10 of the Letters Patent and that appeal is now before us.

Learned counsel appearing on behalf of the appellant has contended that the order of remand passed by the learned single Judge in Second Appeal 885 of 1962 (Pat) was itself illegal for he could not interfere with the finding of fact recorded by the lower appellate court that the plaintiff had failed to prove that he had advanced a sum of Rs. 9000/-to the defendant. In connection with this contention of the learned counsel for the appellant a question arises as to whether that finding of the learned single Judge can be challenged now before us. In this connection reference may be made to a Full Bench decision of this court in Bandhu Kunjra Vs. Rahman Kunjra and Another, . In that case it was held that a Division Bench, which heard the appeal after remand, being a court of coordinate jurisdiction, could not set aside the remand order. In our opinion however, that Full Bench decision is distinguishable. That was a case where there was no Letters Patent appeal. The matter came before a Division Bench on reference by the learned single Judge, who heard the second appeal against the judgment and the decree passed after remand In Budhilal Deviprasad and Another Vs. Jagannathdas Bajrangdar, a Bench of that High Court, relying on the decision of the S.C. in the case of Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, held that the correctness of an order of remand could be challenged in Letters Patent appeal. The facts of that case are more or less similar to the facts of the present case. However, on merit we think that there was no error committed by the learned single Judge in remanding the case. It was not a case of giving erroneous reasons in support of the finding by the lower appellate court but, according to learned single Judge, it was a case of misreading the evidence and finding therein something which was not there. In other words, the judgment and the decree of the lower appellate court was based on materials which were not on the record and, therefore, it was an error of law, which could be set right by the learned single Judge of this court in a second appeal.

Learned counsel on behalf of the appellant then urged that the plaintiff respondent having pleaded that a receipt was also granted to him for the money paid by him to the defendant and that receipt, which also contained stipulation for the refund of the money, having been found not to be a genuine one, it was not open to the lower appellate court to have decreed the plaintiff''s suit on the basis of oral evidence in support of the payment. According to learned appellate counsel it was a clear error of law on the part of the lower appellate court and the learned single Judge should have interfered with in such a case specially when he did not reject the argument advanced before him by the learned counsel for the defendant appellant that the agreement, payment of money and the receipt all were contemporaneous. In the circumstances of the case we do not find it possible to accept even this contention of the learned counsel for the appellant.

Learned counsel for the appellant has placed before us plaint of the suit and after going through it we do not think that the suit is based on the receipt. In the plaint it is clearly pleaded that there was an agreement between the parties and in pursuance of that agreement the plaintiff advanced a sum of Rs. 9000/- to the defendant on 11-1-1957 for purchasing a truck. This agreement obviously is not contemporaneous either with the payment of money or with the issuance of the receipt (Ext. 8), which has been found to be not genuine. In the plaint, however, it is not stated that at the time of the earlier oral agreement there was also a stipulation that in case the truck was not purchased, money was to be refunded and it has been contended that part of the agreement, as to the refund of money, which is incorporated in the receipt was contemporaneous with the payment of the money and the issuance of the receipt. Even if there was no such stipulation, the plaintiff would be entitled to get back the money. Even according to earlier agreement money was to be paid by the plaintiff for the purchase of a truck to be owned jointly and it was not a gratuitous payment. The defendant was bound to refund it to the plaintiff even in the absence of specific stipulation for its refund if the truck was not purchased. Therefore, the finding of the lower appellate court based on oral evidence that the plaintiff did pay to the defendant a sum of Rs. 9000/-cannot be held to be illegal on the ground that the receipt and the agreement were contemporaneous and that the suit is based on the receipt. That finding being a finding of fact cannot be challenged in a second appeal.

In the result, we find no merit in this Letters Patent appeal and it is, accordingly, dismissed. In the circumstance of the case, however, there will be no order as to costs.