Nand Kishore vs Lachmi Narain

Sharma, J.—This is an application for revision by the plaintiff Nand Kishore against the decree of the Small Cause Court, Jaipur City, dismissing the plaintiff''s suit. The learned Small Cause Court Judge has held that the transactions on account of which the loss has been claimed by the plaintiff were wagering transactions. It has been argued by the learned counsel for the plaintiff-applicant that the defendant never set up a plea of wagering contract, nor was any issue framed by the learned Small Cause Court Judge on this point. It is further argued that no evidence was produced in the case, although the burden of proving that the transactions were wagering transactions lay upon the defendant. Rulings in --''Sukdevdoss Ramprasad v. Govindoss Chathurbhujadoss & Co.'' AIR 1928 PC 30 and -- ''Poonam Chand v. Firm Gulab Chand Poonam Chand'' RLW 1950 SC 133 have been referred to. It was held by their Lordships of the Privy CouncilAIR 1928 PC 30 that

"the mere fact that contracts are highly speculative is insufficient in itself to render them void as wagering contracts; to produce that result there must be proof that the contract''s were entered into upon the terms that performance of the contracts should not be demanded but that differences only should become payable."

In the ruling of this Court RLW 1950 SC133, above referred to, it was held that

"In order to establish the plea of wager it must necessarily be proved, in respect of each and every transaction separately, by the party raising the plea, that intention of both the parties, was at the time of entering the contract, to deal in differences only and under no circumstances to take delivery. The fact that no delivery was eventually taken and the parties adjusted the differences is not sufficient to prove the wagering nature of the transaction. What is required is to prove that at the time of entering into the transaction the intention of the parties was to deal in differences only."

On behalf of the opposite party reliance has been placed upon the rulings in -- ''Doshi Talakshi v. Shah Ujamsi Velsi'' 24 Bom 227, -- ''Motilal Partabchand v. Govindrara''30 Bom 83and Firm Ram Krishna Das Jawahar Lal and after the death of Ram Krishna Das Hari Shanker and others Vs. Firm Mutsaddi Lal Murli Dhar In -- ''24 Bom 227'' (C) it was held that in spite of the terms for the delivery of cotton and forbidding of all gambling in differences, the Court was entitled to look into the real nature of the transaction in order to find out whether there was a contract for dealing, in differences only. In -- ''30 Bom 83'' (D) too it was held that the Court should not be misled by the apparent nature of the contract but should be astute to discover what in fact was the common intention of both parties, and should do all that is possible to see through the ostensible and apparent transaction into the underlying reality of the bargain. In the Allahabad case, -- ''AlR 1942 All 170'' (E), it was held that:

"In the case of a pucca arhati transaction the real question is to ascertain what, as between the parties, was the real intention when they entered into the contract in question whether it was ever within their contemplation that goods should be delivered or whether their real intention was only to pay a difference on or after the due date. The mere circumstance that an opportunity is left open to the parties to complete their contract by actual delivery will not be allowed to deprive the Court of the power to consider whether that was their veal intention."

The burden of proving that a particular contract was a wagering contract lies on the party which alleges the contract to be a wagering contract. In the present case, the learned Judge of Small Causes did not clearly set out the point for determination, nor did he consider as to on whom the burden of proving the wagering nature of the transactions lay. He simply recorded the statement of the plaintiff, and only on the basis of that statement he proceeded to give his decision that the transactions in question were wagering transactions. To our mind, the statement of the plaintiff as it stands does not prove that the transactions were wagering transactions. It was necessary to prove that there was a contract between the parties that delivery would neither be taken nor given, and that the parties Should deal in differences only. There is of course no question of any apparent terms of the contract in the present case, because no such written terms have been alleged or proved. Of course, the Court was at liberty to decide the case on such oral evidence as could be produced coupled with the circum-stances of the case. But in the present case, the learned Judge had no clear idea as to what was necessary to be proved in order to hold a contract to be wagering contract. We cannot uphold the decree of the lower Court.

The application for revision is allowed, the decree of the lower Court is set aside, and the case is sent back to the Judge of Small Causes, Jaipur City, for decision in accordance with law in the light of the observations made above. The costs of this revision shall abide the result in the lower Court after this remand.