Mohan Lal Ram Gopal vs Udai Ram-Sewa Ram and Others

Wort, J.—This is the plaintiff''s appeal in an action in which balance of account was claimed to the amount of Rs. 1,027-1-3. The plaintiff''s case was that there being money-lending transaction between the plaintiff-firm and the defendants, after certain payments made by the defendants there was a balance the figure of which I have just mentioned. The trial Court gave judgment for the plaintiff, but that decision was reversed in the lower appellate Court. The first point upon which the learned Judge in the Court below reversed the decision of the trial Court was as to the maintainability of the suit, as it was described. The plaintiff in this plaint had described the plaintiff himself as the

Firm Mohan Lal Ram Gopal, situate in Bettiah town, etc., through Babu Bhagat Lall, proprietor of the said firm,

and the plaint was signed by Babu Bhagat Lall. The Judge in the Court below has decided against the plaintiff on the assumption that the plaintiff was suing under the firm''s name. It will be a waste of public time to refer to authorities in this matter. The short answer to the point, so far as it is necessary to mention it in this appeal, is that the plaintiff was suing not in the firms name but in his own name, and the mere fact of the firm''s name being mentioned in no way affects the matter. What is contemplated in Order 30, Rule 1, Civil P.C. is that two or more persons under a firm may sue without mentioning the names of the individuals. That is not this case. The point is answered in the manner I have already indicated. But in the circumstances it is unnecessary to come to any definite conclusion on that matter for the reason that the learned Judge in the Court below has decided it against the plaintiff upon the merits. Mr. Sarju Prasad appearing on behalf of the appellant frankly admits that his argument relates to questions of fact, but he has contended that the decision of the learned Judge in the Court below is not binding upon us, because the learned Judge misconceived the pleadings, misconceived the evidence and has been guilty of one or two instances of errors of record. We have no jurisdiction even to discuss this matter as was pointed out by their Lordships of the Judicial Committee in the well-known case of Mt. Durga Choudhrain v. Jawahir Singh (1891) 18 Cal 23 where it was laid down that a finding of fact in second appeal is binding upon the High Court however gross or inexcusable that finding may be. The first point (I mention the points merely to show that they are questions of fact) is this: that the learned Judge in the Court below is said to have committed an error of record because he states that the plaintiff admits the transactions were not in his presence. We have been referred to a passage in the evidence of the plaintiff which might be read in the manner in which Mr. Sarju Prasad wishes us to read it; but all I propose to say with regard to the matter that having regard also to a statement at the end of the cross-examination of the plaintiff with regard to a hundi which was not the subject-matter of the action but which the plaintiff made a part of his evidence, I am of opinion that the finding of the Judge was excusable, to put it no higher. The second error of record so called is that the learned Judge states in his judgment with regard to the hundi which I have mentioned, the following:

Except the entry in the plaintiff''s account books about the payment of the hindi to defendant 1, there is no evidence on the point and defendant 1 has denied his alleged endorsement on the hundi stating that he did not receive the money entered in it.

The passage taken as a whole seems to be clear. We have looked at the evidence not for the purpose of deciding the fact but to understand the point, and it clearly appears that no specific question was put to the defendant as to his signature, but when asked questions regarding the transaction which the hundi represented, he denied it in its entirety. It seems to me quite clear what the learned Judge means when he says that he denied the alleged endorsement on the hundi stating that he did not receive the money being the consideration for it. But the whole matter of the appeal is disposed of by the other findings, more particularly those relating to the books. The judgment of the Judge in the Court below can be summarised by stating that he has disbelieved the account books produced by the plaintiff, and once having arrived at that view of the case, although the Judge might have been guilty of an error of record (I do not decide that he was) the reversal of his decision on the points which are said to be the subject-matter of that error of record would in no way assist the plaintiff having regard to his finding. In my judgment the finding of the Court below, whatever criticism there may be of it, was a finding of fact and is binding upon us in second appeal. The appeal therefore fails and must be dismissed with costs.

Rowland, J.

I agree. With reference to the question of maintainability of the suit as framed I would like just to add that if the Subordinate Judge had been right in his view that the frame of the suit was defective, he would have done better to give the plaintiff an opportunity of putting his pleadings in order. Such procedure is provided for in O.1, R.10, Civil P.C., where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff. Again Order 6, R.17, provides for allowing alteration or amendment of pleadings at any stage, and points out that

all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

The technical rules governing the framing of pleadings are not intended to deprive a litigant of his remedy, but to serve the ends of justice. If the learned Subordinate Judge had read with attention the decision in Samrathrai Khetsidas v. Kasturbhai Jagabhai 1930 Bom 216, on which he relies, he would have observed that what was actually done by the Court in that case was to allow the title to be corrected so as to bring the parties face to face and allow determination on the merits of the real point at issue. The appeal must be dismissed for the reasons given by my learned brother.