Raja Mandar and Another vs Rewat Mahto and Others

This is an appeal by the plaintiffs against an order of the District Judge of Monghyr, dated July 26, 1935, by which he dismissed the appeal of the appellants summarily under the provisions of Order XLI, Rule 11 of the Code of Civil Procedure. The plaintiffs had instituted their suit for recovery of the balance of unpaid purchase money due to them on account of a sale deed which they had executed in favour of the defendants on August 4, 1927, for a sum of Rs. 1,398. The case of the plaintiffs was that they received in cash a sum of Rs. 598 and the balance of Rs. 800 was left with the defendants to be paid to various creditors in stated amounts, out of which they alleged that the defendants had paid only a sum of Rs. 391 and the balance of Rs. 406 was never paid by them; hence the suit was instituted on April 16, 1934. The cause of action alleged in the suit was a decree which was passed against the plaintiffs, on April 4, 1933, when a certain creditor, who was riot paid in pursuance of the agreement by the defendants, instituted a suit and obtained a decree against the plaintiffs. The defence in the section was that nothing was due to the plaintiffs and that they had carried out the terms of their agreement by paying off a part of the sum of Rs. 800 in the manner agreed upon and that after paying off the admitted sums to some of the creditors a sum of Rs. 415-8-6 had been paid by them to the plaintiffs had to hand at an unnamed rate.--(See Paragraphs. 5, 6 of the written statement). The defence principally relied upon a document which is sometimes called a chitha and sometimes a hand-note bearing date the 23rd Assin 1339, that is to say, about five years after the sale. Relying upon this document the defendants asserted:

That although the sums due to Narsingh Prasad arid to Raja Sahib (two of the creditors) have been paid by defendants in cash to the plaintiffs for payment to the aforesaid creditors, but as the money paid by defendants to plaintiffs before for payment to Narsingh Prasad has been spent by plaintiffs in other ways and that as Narsingh Prasad plaintiff''s creditor had sued him for the dues of the mortgage, the sum of Rs. 233 was being borrowed by plaintiffs to pay their mortgagee Narsingh Prasad.

The plaintiffs'' case regarding this document was that they never signed this with these recitals but that they signed a certain blank paper in 1341. The learned Munsif did not believe the oral evidence, of either side; and had the case rested there, he states that he would not have believed the plea of payment which was being put forward by the defendants: but he proceeded to examine the evidence given by the plaintiffs as if the onus of payment was on them and in view of certain contradictions in the evidence of plaintiff No. 1 he came to the conclusion that:

It was impossible to hold on the evidence adduced on the plaintiffs'' side that the chitha Ex-A was meant to be a Bai Rayananama and that the plaintiff No. 1 pat his signature and wrote the execution portion on a blank paper.

The learned Munsif then drew an inference from the fact that although the defendants had admittedly paid some of the creditors out of the money left with the vendees and had obtained receipts, the plaintiffs were still issuing notices to the defendants in 1934 for the recovery of even those sums of money, concluding that the plaintiffs were evidently trying to fabricate a case of money of the kibala being due to them from the defendants for a long time; but the learned Munsif did not find that the plaintiffs at the dates of the notices knew of these now admitted payments. Upon this view of the matter the learned Munsif gave a a finding in these words:

Believing the evidence on the defendants'' side and disbelieving the evidence on the plaintiffs'' side. I hold that the sum of Rs. 406 has been paid by the defendants to plaintiffs soon after the kebala.

It will be noticed that the date of payment was not mentioned in the written statement nor in the chitha Ex. A nor does the learned Munsif give a finding as to when this payment was actually made.

Now the above narrative shows that the matter which was in issue between the parties was not so simple as would appear to be at first sight. The plea of payment was set up in a complicated form and it required careful examination by the Courts of fact. The handnote Ex. A in the case is not an original document, but a certified copy had necessarily to be accepted in evidence because this hand note was the foundation of a suit against the plaintiffs in another Court. In our opinion the learned District Judge would have been well advised to have sent for and examined the original before disposing of the appeal. The learned District Judge in the order disposing of the appeal has given reasons for arriving at the conclusion that the appeal must be dismissed, summarily. He relies upon the fact that the:

defendant has clearly shown that he holds a receipt or rather an acknowledgment in payment of this sum to the plaintiff himself. This is Ex. A which has been signed admittedly by the plaintiff. His contention is that he wrote his signature on a blank paper, but there is no evidence at all to support this as appears from the judgment apart from the statement and the argument for the Appellant''s Counsel to show that this contention has in any way been substantiated is useless.

In order to decide whether the recitals in this Chitha were reliable it was necessary to bear in mind that this mode of payment was at variance with the terms agreed upon between the parties in the sale-deed. Paragraphs 6 and 7 of the written statement of the defendants, (already quoted) also required to be carefully considered and it does not appear from: the order under appeal that the learned District Judge had any occasion to go through the (sic) pleadings of the parties; nor, as has already been pointed out, did he have the advantage of looking at the original of Ex. A. In these circumstances we are not satisfied that the plaintiffs have had a fair trial in having their case properly considered, by the learned District Judge.

The learned Assistant Government Advocate appearing for the respondents took a preliminary objection that inasmuch as this appeal was summarily dismissed by the learned District Judge, a second appeal before this Court was invalid and that we could deal with this appeal as if it was u/s 115 of the CPC with the limitations provided in the section. He relies upon the case of Makhu Sahu and Another Vs. Kamta Prasad Sahu and Others, , but in that case the order of dismissal was in the form of "appeal dismissed summarily"; but the exact ratio decidendi of this decision has been pointed out with clearness by Mr. Justice Rowland after consulting the learned Chief Justice and Mr. Justice Varma. In the case of Jamuna Prasad Rai Vs. Rajballam Rai, , Wort, J. (Dhavle, J. concurring) remarked that the mere dismissal of an appeal summarily under Order XLI, Rule 11, does not necessarily mean that no second appeal lies to the high Court. In the case of Babu Badri Narain Singh and Another Vs. Hari Lal Singh and Another, , decided by Wort and Manohar Lall, J.J. one of us took the same view at Page 814 Pages of 18 P.L.T.�[Ed.], top right-hand column. In the present case the learned District Judge has not dismissed the appeal summarily without giving any reasons. He has in effect written a judgment and therefore a second appeal is necessarily maintainable if the other requirements of Section 100 are satisfied. A perusal of the judgment has convinced us that the learned District Judge has not dealt with the merits of the case in accordance with law. The learned Munsif has also written a somewhat involved judgment.

We accordingly hold that the order of the learned District Judge must be set: aside and the case remanded to him so that after hearing both the parties he may dispose of the appeal in accordance with law. He will also take steps to send for the original of Ex. A so that it may be available for examination at the time of the hearing and the writing of the judgment. Costs will abide the result.

A practice seems to be springing up in Monghyr of dismissing appeals summarily without any due regard to the nature of the questions of fact and law that arise for consideration in the appeals presented to the District Judge. This is the third recent case from that District where the summary dismissal of an appeal is being set aside by this Court resulting in unnecessary harassment to the litigants. The Subordinate Appellate Courts should bear in mind that the powers of dismissing appeals summarily ought not to be lightly used especially in cases where a perusal of the judgment itself (assisted by the contentions of the Advocates for the appellants) does not by any means make it clear that the questions at issue are ex tremely simple and do not require any further investigation.