(Maharajadhiraj Sir) Rameshwar Singh Bahadur of Darbhanga vs Narendra Nath Das and others

These two appeals, numbered respectively 96 of 1919 and 168 of 1919, arise out of two suits which were tried together before the Additional Subordinate Judge of Bhagalpur and dismissed by him on the 22nd March 1919. Appeal No. 96 arises out of suit No. 470 of 1917 and appeal No. 168 arises out of suit No. 471 of 1917.

The plaintiff, who is the appellant in each case, is the Maharajadhiraja of Darbhanga. The defendants in the first suit are Narendranath Das and his seven brothers who are sued as the heirs and legal representatives of their deceased father Kishundhan Das who, during his lifetime, practised as a pleader and was for 30 years the appellant''s retained pleader at Madhupura and had the conduct and management of the appellant''s law suits in that Sub-division.

The claim in the first suit is to recover a sum of Rs. 6,130-14-9 together with, interest from the assets of their deceased father in the hands of the defendants on account of the neglect, misconduct and breach of duty of their father and for an account of the amount misappropriated by him and the losses occasioned to the plaintiff by such neglect, misconduct and breach of duty, and for payment by the defendant of the said sum of Rs. 6,150-14-9 or such other sum as the Court may think fit.

The defendant in the second suit is Narendranath Das, the eldest son of Kishundhan Das, who, on his father''s death in August 1913, succeeded him as retained pleader to the plaintiff at Madhupura. The nature of the claim in this case is similar to that in the other except that the negligence, misconduct and breach of duty alleged are those of the son himself during the time when he was the plaintiff''s pleader and the amount claimed is Rs. 4,368-12-9.

The claim in each case is divided into two heads the items of which are set out in detail in schedules 1 and 2 of the plaint in each case. The claim under the 1st schedule is based upon the allegation that certain sums payable to the plaintiff under decrees obtained by him in rent suits against his tenants were realised or withdrawn from Court by the pleader in the ordinary course of his duties and were not accounted for in the accounts rendered by him. The claims falling under the 2nd schedule are based on the allegation that certain other decrees obtained by the plaintiff against his tenants were allowed to become time-barred by reason of the neglect of the pleader to present in time applications for their execution.

The defence is practically the same in each case. It is admitted that the pleader in each case was engaged under a general retainer and paid a monthly salary by the plaintiff, but it is denied that he was the plaintiff''s agent as alleged. It is further pleaded that one Tarini Prasad Das was the plaintiff''s law agent at Madhupura and that it was he who received all monies out of Court or from the judgment-debtors, and that it was his duty to remit them to the plaintiff''s Sub-Manager at the various circle offices concerned, and that the duty of keeping the accounts rested with the law agent. It is denied that the pleader had any duty to realise or receive such sums or to remit them to the circle officers or that such sums were in fact ever realised by him or that he undertook any duties other than those of a pleader. It is denied that the pleader had any liability in connection with the execution of decrees except in cases where he was instructed to apply for execution and that, in such cases, a verified petition was sent to him for that purpose and whenever that was done the petition was duly presented. The liability to submit accounts is denied and it is pleaded that if the pleader was ever liable to submit accounts such accounts have been duly rendered. The alleged loss to the plaintiff is denied and it is pleaded that if any loss occurred, as alleged, it was due to the negligence, default or misappropriation of the said Tarini Prasad Das and other servants of the plaintiff. It was further pleaded in each case that the claim is barred by limitation.

The learned Additional Subordinate Judge before whom the case came for trial in a careful and lucid judgment considered at length the evidence and dealt with all the issues. Most of the issues were common to both cases and he dealt with them together but where they related to one of the suits only he dealt with them separately. With regard to the first suit, in which the heirs of Kishundhan Das were defendants, he found that they as representatives of their father, were not liable to render accounts. He also found that, in so far as that suit was one for monies received or for damages for negligence, it was governed by the three years rule of limitation under Art. 115 of the second schedule of the Limitation Act and was time-barred, having" been brought more than three years after the death of Kishundhan Das who died on the 20th August 1913, the suit having been instituted on the 2nd August 1917. He further held that in both suits the pleader incurred no liability for failure to institute execution proceedings whereby decrees became time-barred as the institution of such proceedings was not a matter in which the initiation rested with the pleader but was with the plaintiff or his authorized agents in that behalf. He also found that proper accounts in both cases had been duly rendered and the defendants could not be called upon to render fresh accounts. As to the sums claimed under Sch. 1 of the plaint in each case for monies received by the pleader for the use of the plaintiff he found that the claim had not been proved. On the question of limitation in the second suit he found that Art. 89 of the Limitation Act governed the claim arising under Sch. 1 of the plaint and that it was not time-barred. He also found that Art. 90 of the Limitation Act governed the claim arising under the second schedule of the plaint. He further found upon the evidence that the plaintiff, or his officers who had responsibility in the matter, had knowledge that the decrees became time-barred as soon as that event happened in each case, and, therefore, under Art. 90 of the Limitation Act, the claim was barred in respect of any alleged negligence or misconduct in failing to execute decrees which took place more than three years before the institution of the suit.

The plaintiff has appealed in both cases. The questions which have been raised for decision on appeal are (l) whether the claim in either of the suits is barred by limitation and which of the articles in the second schedule of the Limitation Act apply, (2) whether the defendants in either suit are liable to render accounts, (3) whether the defendants in either suit are liable in damages for negligence of the pleader in allowing decrees to become time-barred, (4) whether the pleader in either case actually received the sums or any of them set out in the first schedule of the plaint for the plaintiff''s use, (5) whether, assuming there was no actual receipt of the money by the pleader, he was nevertheless responsible for the due transmission of the sums received by Tarini Parsad Das to the plaintiff''s circle offices, and (6) whether any sums so received were not remitted to the plaintiff''s circle offices.

Before dealing with these questions in detail it is desirable to state shortly some of the circumstances under which the claims arise. Kishundhan Das, the father of the defendants, was for 30 years, until his death on the 20th August 1913, the retained pleader of the Darbhanga Raj at Madhupura sub divisional head-quarters and was paid a monthly salary of Rs. 40 for his services. He was succeeded by his son Narendranath Das whose appointment was confirmed on the 30th August 1913. The professional work entrusted to the pleaders consisted mostly in rent suits. The sub-division of Madhupura was divided into 4 circles Naredigar, Jahanjharpur, Birnagar and Ahins. For each of these circles there was a circle office in charge of a sub-manager of the Raj assisted by a law clerk. The pleader carried on his business in a room rented by the Raj for that purpose. This room happened to be in a house belonging to the pleader but not at his residence. A Raj Muharrir, appointed and paid by the Raj, was provided to act as the pleader''s clerk. The scope of the duties of the pleader and the Muharrir is a matter in issue in the suit. During the period with which these suits are concerned the Muharrir under the pleader was Tarini Prasad Das. All monies realised in the suits instituted by the plaintiff, which were very numerous, were remitted from the pleader''s office to the office of the circle whose business it was to receive them. Sometimes decretal money was paid out of Court by the tenant defendant but more usually the suit proceeded to execution and the decree-holder''s dues were either deposited in Court or realised by sale. When money was deposited in Court by the judgment-debtor, an application for a payment order signed by the pleader was presented to the Court by Tarini Prasad. A payment order directing the treasury to pay the amount deposited was then issued by the Munsif to Tarini Parsad who obtained thereon the signature of the pleader acknowledging receipt from the Treasury. Armed with this order, signed by the pleader, it was Tarini Prasad''s business to present it at the treasury and draw the money. It was also his business to enter in the account books kept by him such sums as were so withdrawn. From time to time, generally about once a month, sometimes, more often, the sums realised either by withdrawal from Court or from the judgment-debtors put of Court were sent to the circle office concerned together with a chalan in duplicate showing the details of the sums received during the previous month or whatever the period may have been since the last remittance. One of the chalans was kept at the circle office the other was signed by the sub-manager or the officer responsible and returned to the pleader''s office as an acknowledgment of the receipt of the money. These chalans were kept in triplicate and it was the business of Tarini Prasad to keep them. They were printed forms kept in a book, the first one being retained in the book as a counterfoil and the other two detached and sent to the circle office when filled up as already stated. In addition to the chalan register a register of cash account was also kept at the pleader''s office. This cash account appears to have been concerned primarily with the different items of expenditure made by the pleader out of sums sent to him from time to time for defraying out of pocket expenses in connection with suits in which he was engaged. Under the rules laid down for the guidance of law officers and others it was the pleader''s business to keep the cash account as appears from rule 6 (See Ex. A and Schedule F attached thereto). It was also the duty of the karpardas attached to the Munsif''s Court to keep a monthly register of cash account, circle by circle. This appears from rule 7 and schedule G of the rules. Although Tarini Prasad Das has been referred to as a muharrir there was no other karpardaz attached to the Munsif''s Court at Madhupura and he appears to have carried out the duties assigned by the rules to the karpardaz there. It is not very clear whether two cash accounts were kept or only one but, however this may be, the accounts were in fact kept by Tarini Prasad. It is not suggested that the remittances sent to the pleader for the purpose of making disbursements in the cases conducted by him were not all properly accounted for and no question arises with regard to such sums. The monies received out of Court, however, or otherwise paid by the judgment-debtors to Tarini Prasad appear to have been entered in the cash account already mentioned and this was periodically countersigned by the pleader on being presented to him by Tarini Prasad. It is the defendants'' case that he signed this book merely because the disbursements for which he was responsible were entered therein and that his signature was not necessary for and had nothing to do with the entries relating to sums received out of Court or from the judgment-debtors, a matter which he contends was entirely in the hands of Tarini Prasad. In addition to signing the cash register it appears that the pleader from time to time, as the chalans for money received from the judgment-debtors were forwarded to the circle office, signed a certificate to the, effect that all monies received during the past month had been duly forwarded to the circle office. The plaintiff contends that the signing of this certificate cast a duty upon the pleader to see that all monies actually received by Tarini Prasad from the judgment-debtors or out of Court were duly forwarded.

When it was necessary to apply to the Court for execution of a decree, the circle officers concerned with the matter would send to the pleader''s office a verified application for execution bearing the signature of the Sub-Manager. On receipt of this at the pleader''s office it was countersigned by the pleader and presented in Court to be filed by Tarini Prasad. It is not the plaintiff''s case that any such applications sent were not duly presented but it is contended that it was the pleader''s business to remind the plaintiff''s agent at the various circle offices that a decree was about to become time-barred and that an application for execution should be sent to him for filing.

On the 8th May 1915 Tarini Prasad, who was then under orders of transfer to another place, disappeared. Certain officers of the Raj were deputed to make an enquiry and the whole of the accounts of the sherista were overhauled. The result of this was that on the 29th June 1915 Abdul Wajid, a circle law clerk of the plaintiff, was deputed by the Raj to lodge a petition of complaint against Tarini Prasad charging him with misappropriation. Tarini Prasad surrendered and was committed to the Sessions. In the meantime his duties as muharrir at the pleader''s office were taken over by Jang Bahadur. Tarini Prasad was tried in December 1915 and was acquitted in January following. The prosecution having failed Narendranath Das, the defendant, on the 20th July 1916 was called upon to submit accounts. On the 31st July he refused to do so disputing his liability to account and stating that all the accounts had been duly rendered and were in the possession of the Raj. It appears that a few days earlier, on the the 15th July 1916, Narendranath Das bad tendered his resignation as Raj pleader but he in fact continued to act until the 30th January 1917 when his office terminated. Both the present suits were instituted on the 2nd August 1917.

With these preliminary observations we propose to deal with the points raised in the order mentioned above.

The first point relates to the question of limitation. With regard to the claim in the first suit the defendants are sued as legal representatives of their deceased father. It is, we think, well established that the representatives of a deceased agent are not liable to render an account in the sense in which the agent, had he lived, might have been called upon to do so and this was not disputed by the learned Government Advocate on behalf of the appellant in argument before us. The liability to render accounts is a personal one attaching to the agent and cannot be enforced against his heirs. This does not mean, however, that the heirs must necessarily escape liability altogether for the defalcation or breach of duty of the agent if the principal can prove that he has suffered loss thereby. The suit is so framed as to include a claim for sums received by the agent for the use of the plaintiff and for the loss occasioned to the principal by reason of the defalcation and breach of duty of the agent and to the extent of the assets of the deceased agent in their hands, the heirs would be liable. The burden of proof, however, in such a case, rests upon the plaintiff. It is unnecessary, however, for the purposes of the first suit to consider to what extent, if at all, the plaintiff may have made out such a case because, even assuming that such a case could be established, in our opinion any cause of action which the plaintiff may have had became time-barred by limitation before the suit was instituted. It is conceded by the appellant that the claim for damages for breach of duty by reason of allowing the decrees to become time-barred is covered by Art. 115 of the second schedule of the Limitation Act which prescribes a limitation period of 3 years from the date of the breach of contract. As the breach alleged in the first suit must have occurred during the lifetime of Kishundhan Das it follows that the suit having been instituted more than 3 years after his death the claim cannot now be enforced. This covers the items set out in the second schedule of the plaint. But it is contended that the claim for monies received by Kishundhan Das and not accounted for is not covered by any specific article in the Limitation Act and therefore comes under the residuary Art. 120 which governs suits not otherwise provided for and allows six years from the date when the right to sue accrues. If the three years period applies it is conceded that the suit is barred. It is contended by the appellant, and not disputed by the respondents that Arts. 89 and 90 of the Limitation Act which relate to suits by a principal against his agent do not apply to suits against the representatives of a deceased agent and those articles need not be considered. The respondents, however, contend that either Art. 62 or Art. 115 is applicable. Both these articles provide a three years'' period of limitation and if either of them applies the suit is barred, as Art. 120 would in that case have no operation. Art. 62 is for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff''s use and the period of 3 years begins from the time when the money is received. If the commencement of the period is to be taken as the date when Kishundhan Das received the money, assuming he ever did receive it, or even at the date of his death, when the defendants succeeded to their father''s estate, in either case the claim became time-barred before the suit was instituted. The appellant argues that Art. 62 can have no application as the suit against the defendants is not for money received by them for the plaintiff''s use at all, they having received it as part of the assets of their father''s estate and not for the use of any one except themselves. In other words they never received it at all in the sense intended in the Act. If the Article had stood alone we think there would have been some force in this argument but S. 2 of the Limitation Act provides that unless there is anything repugnant in the subject or context "defendant" includes any person from or through whom a defendant derives his liability to be sued. Read in the light of S. 2, Art. 62 would include a claim against the present defendants for money received for the plaintiff''s use by them or their father through whom they derived their liability to be sued and we consider that this article applies. This was the opinion taken by Mr. Justice Greaves of the Calcutta High Court in Ramhari Kapali v. Rohini Kanta Chakravarty (1922) Cal. 499: 35 C.L.J. 380: 67 I.C. 948, where certain decisions of the Allahabad High Court to the contrary effect were either distinguished or not followed. In our opinion the decision of Greaves, J., was right. We further consider that, even if Art. 62 should not be applicable, the case is covered by Art. 115 which provides for a suit "for compensation for the breach of any contract express or implied not in writing registered and not herein specially provided for." The liability to remit the sums received arose out of contract and the failure to do so, if any, was a breach of contract and it is for that breach that the suit is brought. It follows therefore that in our opinion appeal No. 96 of 1919 is time-barred and for this reason, if for no other, the appeal should be dismissed with costs.

With regard to the second suit, No. 471 in our opinion Art. 89 applies to that part of the claim which falls under schedule 1 of the plaint. That article provides for a suit for a principal against his agent for moveable property received by the latter and not accounted for. The application of this article is not disputed. The only question argued before us was when the period began to run. The learned Counsel for the respondents argued that each case in which the sums were received was a separate subject of agency because a separate vakalatnama was given to the pleader in each case, but it is common ground that the defendant was appointed to the post of Raj pleader, which his father held before him, in August 1913. It seems to us that the appointment involved a continuous and comprehensive agency and the vakalatnamas that passed from time to time from the plaintiff to the defendant were merely incidental to that agency and the period began to run from the 31st July 1916 when the defendant refused to render accounts and the suit is not time-barred.

With regard to the claim arising under the second schedule of suit No. 471 this appears clearly to be covered by Art. 90 of the Limitation Act which provides for other suits by principals against agents for neglect or misconduct, and the period of three years runs from the time when the neglect or misconduct becomes known to the plaintiff. Here again the application of this article was not disputed, the only point at issue being a question of fact, namely, at what time the plaintiff had knowledge of the misconduct of the pleader. Upon this question the appellant''s contention was that he first obtained such knowledge on the 7th January 1916. This contention appears to us to rest upon no foundation of fact. It has not been explained what happened at that particular time to bring the defendant''s neglect to the knowledge of the plaintiff. The learned Additional Subordinate Judge has shewn that the plaintiff had ample means of knowledge if not at the time at least very shortly after each of the alleged delinquencies. The respondent points to what we consider conclusive evidence shewing that the agents and officers of the appellant had exactly the same information as the pleader as to when decrees had lapsed by failure to apply for execution. They had duplicate rent suit registers which shewed the progress of every case under trial, appeal or execution. The accounts were sent in at least once a month accompanied by a tabular statement in the form of a chalan shewing details of the cases in which the money had been paid. The accounts of the pleader''s office were subject to regular periodical checking and the circle law agent had the duty of comparing at frequent intervals the circle accounts with the accounts and records of the pleader''s office. Moreover the sub-manager had estate officers in every village under his control and would surely hear of any delay in realisation of rent decrees by execution. It is unnecessary to pursue this question further. The evidence amply convinces us that the appellant''s authorised agents would know that an execution of a decree had become time-barred practically as soon as that event happened. It follows therefore that in our opinion all. claims in the second schedule for negligence arising more than three years before the date of suit are barred. This question is not of material importance, however, having regard to our findings on the third point which will be referred to presently.

The second question is whether the defendants in either suit are liable to render accounts. In dealing with the question of limitation we have already held that the defendants in the first suit are not liable to render an account as the representatives of their father. With regard to the second suit it appears from the judgment of the trial Court that the point was abandoned by the learned Vakil who then appeared for the plaintiff and who conceded that the evidence of his own witnesses showed that the pleaders had all along submitted accounts month by month, not only of the advances received by them from the circle offices but also of the sums received in Court and outside the Court on the plaintiff''s account. It was further conceded that the only claim which the plaintiff could put forward was to recover the amounts mentioned in the respective schedules of the plaint and the suit, as pointed out by the learned Judge, is not one for accounts strictly so-called but for recovery of monies received for use of the plaintiff and for damages for negligence. It was further forcibly pointed out by the learned Judge of the trial Court that the plaintiff who had all the accounts in his possession, not only those rendered by the pleaders, but those kept by his own servants, and agents, had failed to produce the most material documents which might have been expected to substantiate his case. In our opinion no case has been made out far ordering a fresh account to be taken.

The third point is whether the defendants in their suit are liable in damages for negligence of the pleader in allowing decrees to become time-barred. In the earlier part of this judgment we have referred to the practice in vogue when the plaintiff desired to take out execution of a decree. Admittedly until the verified application for execution of a decree was received at the pleader''s office he had no authority to initiate execution-proceedings. Accordingly if any decrees became time-barred it is not easy to appreciate how the pleader could be held responsible provided, he did not neglect to present the applications for execution when sent to him for that purpose. It is not shown that he was negligent in that respect. Further it is admitted that the plaintiff''s officers at the various circle offices had their own rent suit registers which were frequently compared with the register kept by the pleader and that they had full information as to the dates when execution of the various decrees would become time-barred. It is also shewn from the evidence of the plaintiff''s own witnesses that the duty of initiating such proceedings rested with those officers and not with the pleader. It was contended before us, however, that the pleader had a duty to remind the circle officers and other agents of the plaintiff if it should appear that they were allowing the time to run short before initiating proceedings. Throughout the evidence which is unusually voluminous in this case there is nothing whatever to shew that there was any express duty cast upon the pleader to remind the plaintiff or his servants that they were not properly conducting their business and no document has been produced to show either that the pleader ever attempted to interfere in this manner or that his conduct was ever called in question for failing to do so Indeed the evidence was overwhelming to show that it was the duty of the circle officers, and their duty alone, to ascertain what progress had been made in any particular case, and the law registers at the circle offices shewed exactly what realisations had been made and it was the duty of the law clerk to report upon such matters to the sub-manager. Nor are we able to find that any implied obligation can, in the circumstances, arise out of the terms of the pleader''s employment. His business was to conduct the plaintiff''s cases as and when he was instructed and not to instruct the plaintiff or his servants that they ought to take proceedings against their tenants in cases in which, for aught he knew, there might be the best of reasons for refraining from such a course. In our opinion the claim for damages for negligence in allowing decrees to become time-barred fails.

The fourth point for consideration is whether the pleader in either case actually received for the plaintiff''s use the sums or any of them set out in the first schedule of the plaint. The sums withdrawn from Court were undoubtedly taken out upon the applications signed by the pleader but in every case the payment orders were received by Tarini Prasad Das, the muharrir, and it was he who cashed the same at the treasury. Likewise there is nothing to shew that any one except the muharrir ever received the sums paid by the judgment-debtors out of Court. The only sums actually received by the pleader were the law advances for meeting necessary disbursements and no question arises as to these. We hold therefore that the pleaders did not in any case receive the sums claimed in their actual possession.

The fifth question relates to the liability of the pleader for the remittal of the sums received by the muharrir to the plaintiff''s circle offices. Various arguments were adduced before the trial Court in respect of the pleader''s liability. It was contended first that Tarini Prasad was the pleader''s clerk and servant and that the pleader was responsible for his acts; secondly, that the pleader should not have allowed Tarini Prasad to receive these sums and thirdly that it was the pleader''s duty to see that the amounts so received were entered in the accounts and promptly remitted to the circle offices. The judgment of the trial Court deals at length with each of these argument and dismisses them. With regard to the first two of these points no argument has been urged before us in support of them and indeed it would be difficult in the face of the evidence to shew either that Tarini Prasad was the pleader''s servant or that the procedure followed whereby Tarini actually received the sums was not authorised and assented to on behalf of the plaintiff. It is urged, however, that the pleader was bound to see that the amounts realised by the muharrir were entered in the accounts and promptly remitted to the circle offices concerned and that the neglect of this duty resulted in a loss to the plaintiff. The view taken by the learned Additional Subordinate Judge was that, in so far as the claim for the items comprised in the first schedule was concerned, it was a claim for misappropriation of sums received by the pleader and not a claim for damages for negligence and that the plaintiff ought not to be allowed at that late stage to make a new case. He further considered that Tarini Prasad although called muharrir was really the Raj karpardas at Madhupura and that under the rules already referred to (Ex. A) it was his duty to keep accounts of all sums received by him as well as the register of triplicate chalans for the monies remitted to the circle offices and that the practice followed by him had the approval of the plaintiff''s officers. He thought that in these circumstances the pleader could not be blamed or made responsible for not having foreseen the possibility of defalcation by the muharrir and that if anybody was responsible besides the muharrir himself it was the circle sub-manager and not the pleader. On referring to the rules laid down for the guidance Of all law officers of the Raj it appears that by R. 6 District Court and Munsifs'' Court Pleaders must keep the register in Sch. F in English where clerks have been given to them and, where no clerks have been given, in the vernacular. The only documents in Sch. F which are material and which the pleader had to keep are the register of rent suits and the register of cash account. The register of cash account would no doubt include such amounts as were periodically sent to the pleader to meet the disbursements in cases under his charge. There is nothing to shew, however, that it would include any sums not actually received into his hands. The register of rent suits would or ought to shew all transactions in connection with such suits and would presumably include monies received out of Court or from the judgment-debtors direct. In a circular letter dated the 20th September 1910 (Ex. 3) sent by the general manager to all sub-managers, agents, factory managers and treasury officers and which the defendant''s father is proved to have received it is stated "I have to remind you that the Raj rules clearly make out that pleaders and mukhtars are responsible for remittances made to them from different offices, for monies received by them from judgment-debtors (the raiyats and others) and for monies drawn by them from Courts and I trust you deal with them accordingly and shall always so deal with them in future. Please explain their duties in this respect afresh to the pleaders and mukhtars and others having monetary transactions and let me have their assurances that they do understand them." In so far as this refers to monies drawn by the pleaders from Court or received from judgment-debtors it may well be that such monies were actually received by them into their own custody on occasion, as when the muharrir or karpardaz was ill or on leave but there is nothing to shew that it had reference to all monies received out of Court or from judgment-debtors even by the karpardaz himself in accordance with the practice recognised by the Raj. By Cl. 7 of the rules, the karpardaz attached to the district and Munsif''s Court have, amongst other duties, to keep the registers marked in Sch. G in the vernacular. Sch. G amongst other registers includes the monthly register of cash account circle by circle, the register of triplicate chalans for money sent and the register of rent suits. These documents were in fact kept by Tarini Prasad and it is the opinion of the judge of the trial Court that although referred to as a muharrir he did in fact act as karpardaz of the Munsif''s Court. At all events he kept the documents which it was the duty of the karpardaz to keep and there seems to be no reason to quarrel with his finding in this respect. It is true that the triplicate chalans and the cash account were signed by the pleader and he was in the habit also of signing a certificate when the chalans were sent to the circle office to the effect that all monies received during the past month had been remitted. To this he appended his signature when the certificate was presented by Tarini Prasad and he no doubt relied upon the latter''s word for its accuracy. If it referred merely to amounts received by the pleader himself its accuracy can hardly be questioned as he in fact received nothing. It does not appear to have been part of the duty of the pleader to keep any account of the sums received from the judgment-debtors or withdrawn from Court and for the accuracy of the chalans, he no doubt had to rely upon the word of Tarini Prasad. In connection with this matter it is not unimportant to consider certain documents prepared on behalf of the plaintiff in the criminal proceedings against Tarini Prasad. In the complaint lodged in that prosecution (Ex. J) it was stated that one of the accused''s duties was to remit to the circle offices the decree monies after having realised the same, and the law clerk Abdul Wajid in his evidence stated that it was Tarini Prasad''s duty, amongst others, to realise decree monies either from Court or from judgment-debtors and to remit the amounts so realised to the sub-manager of the circle concerned. These proceedings were taken and the petition of complaint filed after serious consideration between the law clerk, the Raj manager and the sub-manager of the Naredigar circle, and the correctness of the statement then made has not been disputed. The only question is, assuming the point to be open to the plaintiff on the pleadings, whether by certifying when the chalans were sent that all mosey received had been duly remitted he has rendered himself liable to a suit for damages for negligence. The question is not free from difficulty but having regard to the fact that the plaintiff''s sub-managers and other officers at the circle offices had the same knowledge or means of knowledge as the pleader for checking the accounts of Tarini Prasad, we are on the whole of opinion that the plaintiff has suffered no loss by reason of any neglect of duty on the part of the pleader in this matter.

The sixth and last question is whether it has been made out that any of the sums received by Tarini Prasad were not remitted to the plaintiff''s circle offices. In view of the findings on the fifth point it might not be necessary to determine this question, but even if our opinion upon the last point should be wrong we consider that it is not sufficiently proved that any of the items claimed in the first schedule were not remitted to the circle offices concerned. In connection with this question it is significant that from the opening of this litigation the plaintiff has been reducing his claim. The plaint as originally filed was amended by striking cut a large number of the items claimed. Many more were abandoned in the trial Court and others were also struck out before us. Of those which remain some were proved to have been duly paid to the Raj from the plaintiff''s own documents and in respect of others there was no evidence to shew that the amounts were drawn out of Court. In the end not of the numerous details in schedule No. 1 in the two cases only items 3 and 23 in the first schedule of the second suit were urged as being supported by the requisite sequence of evidence shewing receipt of the money and failure to remit. The appellant seeks to prove his case by production of certain records from the Munsif''s Court shewing that money Was paid out to Tarini Prasad and pointing to the fact that such sums found no place in the chalans shewing remittal of the sums at or about the period when they were withdrawn. The chalan counter foils are not produced and the chalans themselves are admittedly imperfect in that some. Only of them have been produced. The suit registers have not been produced and the cash account books kept either at the pleader''s office or at the circle offices, with a few unimportant exceptions, are not forthcoming, and such documents as are produced refer only to the accounts of one of the circles in question. These documents would have shewn beyond all doubt whether the sums claimed were in fact remitted to the circle offices concerned and as the defendants have no accounts of their own, it is impossible for them to deal adequately with this issue. Again it appears from the evidence that at times monies used to be sent to the circle offices without accompanying chalans. In dealing with this question we cannot do better than quote somewhat fully from the judgment of the learned Additional Subordinate Judge. After dealing with the question of the onus of proof in cases where the accounts had already been rendered and finding that it lay upon the plaintiff, he proceeds thus: "That being so it was quite incumbent upon him (the plaintiff) to produce these accounts in Court but curiously enough the primary papers are not forthcoming, though the defendants raised the point specifically and stated that as all the papers, books and records necessary for the adjustment of the accounts asked for ware with the plaintiff, he could not be equitably and legally called upon to render any accounts (vide para. 21 of the written defence in suit No. 471.) Heaps of papers and documents have been produced in Court on behalf of the plaintiff but not a single copy of the suit registers is forthcoming and excepting three cash account books (vide Exs. 14 to 146) the bulk of those important papers have also been withheld. The first, viz., Ex. 14 is for 1912, the second Ex. 14(a) for 1907 to 1908 and the third, (Ex. 14(6)) from July 1910 to April 1911 and the first and the second refer to trust mehals only. Thus practically speaking there are no cash account registers forthcoming in respect of the Mal villages of the four circles appertaining to the Madhupura Civil Court. Those cash accounts have an intrinsic value of their own as they contain item by item and case by case the sums remitted from the pleader''s office to the several circle offices and the evidence on the record shews that separate cash account registers have all along been kept for each circle. Some chalans have no doubt been produced but it has not even been attempted to make out that they make up the, whole quantity of such documents received from the pleader''s office and the value of these documents is somewhat diminished from the fact as disclosed in evidence that at times money used to be sent without such chalans. And again the cash account registers and the chalans would have been sufficient checks one upon the other." In a later passage he states "Many and numerous are no doubt the documents and papers produced by the plaintiff in these cases but all through the tendency of his officers was to withhold such papers as were in any way helpful to the defendants and I cannot but observe that the deliberate policy of the plaintiff''s officers and amlas was not to produce documents which might have thrown any light on the real point at issue." It further appears from the evidence that in some cases amounts received by Tarini Prasad were not credited in the subsequent monthly account but found a place in chalans of a later date. Apart from the documentary evidence which is defective as already shewn there is not a single witness who states that any monies received at the pleader''s office were not duly remitted to the circles concerned. It is impossible in our opinion in this unsatisfactory state of the evidence upon this vital matter to differ from the findings of the trial Court upon this issue. In our opinion these appeals should be dismissed with costs.