Vs. Gururajacharya  INSC 3 (6 January 1997)
RAMASWAMY, G.T. NANAVATI
O R D E
have heard learned counsel on both sides.
appeal by special leave arises from the judgment dated September 18, 1995 made in R.S.A. No. 679/94 by the
Karnataka High Court. The appellant's father filed the suit for declaration and
rendition of account from the respondent. According to him, he had purchased
the business of the restaurant on July 2, 1951 for a consideration of Rs. 2000/- out of his own funds
under Ex.P-7. Since he was employed as a teacher and the respondent was
loitering jobless, he put the respondent in charge of the business.
due to mismanagement of the business on the part of respondent, the appellant's
father filed the suit with the above relief. The trial Court decreed the suit
on October 28, 1986, but on appeal the Addl. District
Judge by his judgment and decree dated February 28, 1994 reversed the decree and dismissed
the suit and in the second appeal it was confirmed. Thus this appeal by special
earlier proceedings, the respondent had made an unequivocal admission in the
written statement as under:
In 1946 P. Vasudevacharya had taken a loan from Sitaramacharya the elder brother
of the opponent. Since P.V. Rusdevacharya happened to be the relative of the
opponent and his elder brother, the dealings were continued for a long time.
opponent was never a servant of the deceased P. Vasudevacharya. He came down to
Bijapur in August 1951 at the instance of his elder brother just to carry on
the business on behalf of his said elder brother who was by that time the sole
proprietor of the shop. Since the elder brother could not do the business of
the hotel, the opponent has been doing it on his behalf. He has since obtained
the requisite license from the authorities in his name and he has himself taken
the some premises on use from the landlord".
respondent had also set up the plea in the written statement that he had sufficient
funds to purchase the property in question. The trial Court had considered his
evidence. On his own admission that there were several decrees pending
execution against him at Udipi, the trial Court found in unlikely that the
would have necessary funds to purchase the property in plaintiff's name. His
plea that he had borrowed from his brother-in-law was negatived on the ground
that his brother-in-law was not examined. The appellate Court relying upon the
judgments of this Court, wherein it was held that an admission made in an
earlier proceeding could be considered as conclusive, held that the respondent
has sufficiently explained the admission and that, therefore, his admission was
conditional. The appellant Court has recorded in this behalf as under:
in this case opined that the present defendant made admission in Ex.P-10 under
constraint and compelling circumstances." The appellate Court has not
explained any of the circumstances much less compelling one under which he came
to make such an admission. Under Section 18 of the Evidence Act the admission
made by the party would be relevant evidence. Section 31 provides that
"admissions are not conclusive proof of the matters admitted but they may
operate as estoppel under the provisions hereinafter contained". In view
of the admissions referred to earlier they appear to be unequivocal and the
finding recorded by the appellate Court is cryptic. On the other hand, the
trial Court has gone into the evidence on issues in extension and considered
the evidence and the appellate Court has not adverted to any of those valid and
relevant consideration made by the trial Court. The High Court has dismissed
the second appeal holding that they are findings of fact recorded by the
appellate Court on appreciation of evidence.
think that the view taken by the High Court is not correct in law. The
admissions in the written statement in the earlier proceedings, though not
conclusive, in the absence of any reasonable and acceptable explanation, it is a
telling evidence heavily loaded against the respondent.
appeal is allowed. The judgment of the High Court and the appellate Court stand
set aside and that of the trial Court stands confirmed. No costs.