Tansuk vs Ram Pershad Khetawat

Nigam, J.C.

Ram Pershad filed Civil Suit No. 135 of 1951, against Gauri Shanker and another claiming a decree for Rs. 651-14-6. The suit was heard ex parte and the learned Subordinate Judge, Beawar, decreed the claim for Rs. 651-14-0. Tan Sukh, defendant No. 2 appealed to the District Judge. The appeal was dismissed and now Tansukh has come up in second appeal. I have heard the learned counsel for parties.

The first point urged by the learned counsel for the appellant is that no ex parte decree should have been passed by the learned Subordinate Judge. I am referred to the provisions of O. 5, R. 6, Civil P.C. The learned counsel urges that the defendant should have been allowed sufficient time to enable him to appear and answer. In the present case, the summonses were served on 14-2-1952, and the case was fixed for 26-2-1952. In my opinion, the time allowed was sufficient. I, therefore, see no force in this contention.

The next point urged by the learned counsel is that the plaintiff pleaded limitation under the provisions of S. 13, Limitation Act on the ground that the defendant had been outside the provinces, which were previously British India. The contention of the learned counsel is that the plaintiff merely stated that the defendants live in Bundi and did not specifically state that the defendants had at no time come to the British India. I am unable to see any force in this contention. The plaintiff definitely meant to say that the defendants had been away from the British India during the period he wanted to be excluded under S. 13. The learned trial Judge understood the plaintiff to mean this and I am not prepared to disagree with that interpretation.

The last point urged by the learned counsel is as regards interest. A sum of Rs. 133-1-6 is included as interest in the balance of Rs. 407/- stated by the plaintiff to have remained due. Then, Rs. 238-6-0 was added as further interest. Thus, out of the claim for Rs. 651-14-6, a sum of Rs. 371-7-6 was due towards interest and only Rs. 280-7-0 was due on account of cloth and other miscellaneous expenses.

The learned counsel for the appellant has urged that interest could be claimed either under agreement or under usage. No such claim was, made in the plaint. Interest could also be allowed under S. 61 of the Indian Sale of Goods Act, but the learned subordinate Judge and the learned District Judge did not purport to exercise their power under that law. The learned counsel''s contention in the circumstances is that no interest should have been allowed. The learned counsel for the respondent has urged that interest having been allowed, it must be presumed that the Courts below allowed interest under S. 61, Sale of Goods'' Act. I am unable to make any such presumption. It appears to me that the Courts below allowed interest on the basis of market custom or usage.

It is true that this fact is not clearly stated but they appear to have allowed interest on the usual mercantile rate and do not appear to have considered the question of the rate of interest which they would normally have done if allowing interest under S. 61, Sale of Goods Act. I am, therefore, of opinion that no interest could have been allowed.

Accordingly, I accept this appeal in part and for the decree granted by the learned Subordinate Judge, substitute a decree for Rs. 280-7-0 only. The plaintiff will get proportionate costs in the trial Court and in the Court of the District Judge, and in this Court, the parties will bear their own costs.