C. Patel & Bachu Bhai Patel Vs. Harihar Behera & ANR  INSC 71 (16
Ahmad, & M B Shah.S. Saghir Ahmad, J.
appellant was defendant No. 1 in a suit filed by respondent No.1 for recovery
of a sum of Rs.7,000/- together with damages (Rs.1400/-) in the trial court
which was dismissed as against him but was decreed against the second
defendant, namely, respondent No.2 who, incidentally, also is the natural
father of respondent No.1 who was subsequently adopted by his maternal
No.1 had a current account in the Central Bank of India Limited, Sambalpur
Branch which was also operated by his natural father, namely, respondent No.2.
to the facts set out in the plaint, respondent No.1 was registered as a money
lender in October, 1958 and in that capacity he used to advance loan through
his natural father to different persons out of his account in the Bank which,
as pointed out above, was also operated by his natural father. On the expiry of
the licence, he did not get it renewed but the authority of his natural father
(defendant No.2) to operate the account continued and taking advantage of this
authority, defendant (respondent) No.2, on the persuasion of the appellant,
issued a cheque for Rs.7,000/- on the current account of respondent No.1 on
29.4.1964 which was encashed by the appellant. This amount was not paid back by
the appellant in spite of repeated demands and, therefore, the suit was filed
both against the appellant as also respondent No.2 who had issued the cheque to
appellant, in his written statement, pleaded that there was no relationship of
debtor and creditor with respondent No.1 as the amount was advanced personally
by defendant (respondent) No.2 and, therefore, respondent No.1 had no right to
institute a suit against him specially when respondent No.2 while advancing the
money to him had not acted as agent of respondent No.1. The appellant also
raised the plea of Section 8 of the Orissa Money Lenders Act and contended that
since respondent No.1 was not a registered money lender on the date on which
the amount of Rs.7,000/- was advanced to him as loan, the suit was not
maintainable as the amount was advanced in the course of regular money lending
business. It was also pleaded that since some dispute had arisen between the
appellant and defendant (respondent) No.2 with regard to the adjustment of the
appellant's dues against respondent No.2, the latter, namely, respondent No.2
got the suit filed through his son on false pleas.
No.2, in his separate written statement, pleaded that he was very close to the
appellant who dealt in tobacco business and whenever he was in need of money,
he would approach respondent No.2 for financial help and respondent No.2 would
lend him the money required by the appellant. It was pleaded that on 29th of
April, 1964, the appellant had approached respondent No.2 for payment of a sum
of Rs.7,000/- for a short period and, therefore, respondent No.2 issued a cheque
for that amount in favour of the appellant on that day on the current account
of respondent No.1 in the Central Bank of India Ltd., Sambalpur Branch. When
respondent No.1 came to know of this transaction, he demanded repayment of the
amount but the appellant instead of paying the amount to respondent No.1,
proposed to set off his own dues against respondent No.2.
pleaded that since the appellant had withdrawn the amount from respondent
No.1's account through a cheque duly issued to him by respondent No.2, he was
liable to pay the amount to respondent No.1.
suit was decreed by the trial court only against respondent No.2 for a sum of
Rs.8,400/- but was dismissed as against the appellant on the ground that the
appellant had not approached respondent No.1 nor had respondent No.1 advanced
the amount of Rs.7,000/- to the appellant. The trial court was of the opinion
that the case of agency was not made out and respondent No.2 could not be
treated to be the agent of the appellant. It was found that the transaction in
question was directly entered into by the appellant with respondent No.2 and
respondent No.1 was in no way involved at any stage in that transaction. The
High Court, in appeal, modified the decree passed by the trial court and
decreed the suit against both the defendants, namely, the present appellant as
also respondent No.2. It is against this judgment that the present appeal has
contention raised by the learned counsel for the appellant is that the
respondent No.1 had no right to institute an appeal in the High Court as the
trial court had already decreed the suit. It is contended that though the
decree was passed only against respondent No.2 and not against the appellant,
it was wholly in consonance with the prayer made by respondent No.1 himself in
his plaint in which he had claimed a decree either against the present
appellant or against respondent No.2. Since the suit was decreed against
respondent No.2, there was no occasion to file an appeal against that decree in
the High Court.
Para 9 of the plaint, a copy of which
was placed before us, reads as under:- "9. Plaintiff prays for a decree of
Rs. 8,400/- with costs of suit against both the defendants, to be realised -
severally from either of the defendants, with interest pendentilite and future
at the rate of 7 PC. per annum." The relief clause of the plaint extracted
above would show that respondent No.1 had claimed a decree for a sum of Rs.8,400/-
against both the defendants so that it could be realised from both the
defendants or from either of them.
was a legitimate and reasonable prayer. Since defendant (respondent) No.2 had
advanced the amount in question to the appellant on the account of respondent
No.1, both of them, namely, the appellant and respondent No.2 were jointly and
severally liable to pay that amount to respondent No.1. Having claimed a decree
against both the defendants, the plaintiff (respondent No.1) put it in the
plaint that a decree be passed against both the defendants so that the decretal
amount may be realised from either of the defendants.
the trial court had decreed the suit only against respondent No.2 and not
against the appellant, it was open to respondent No.1, in this situation, to
invoke the jurisdiction of the appellate court for decreeing the suit even
against the appellant.
can be viewed from another angle.
1 Rule 3 provides as under:- "R.3. Who may be joined as defendants.
persons may be joined in one suit as defendants where- (a) any right to relief
in respect of, or arising out of, the same act or transaction or series of acts
or transactions is alleged to exist against such persons, whether jointly,
severally or in the alternative; and (b) if separate suits were brought against
such persons, any common question of law or fact would arise." This Rule
requires all persons to be joined as defendants in a suit against whom any
right to relief exists provided that such right is based on the same act or
transaction or series of acts or transactions against those persons whether
jointly, severally or in the alternative.
additional factor is that if separate suits were brought against such persons,
common questions of law or fact would arise. The purpose of the Rule is to
avoid multiplicity of suits.
Rule, to some extent, also deals with the joinder of causes of action inasmuch
as when the plaintiff frames his suit, he impleads persons as defendants
against whom he claims to have a cause of action. Joinder of causes of action
has been provided for in Order 2 Rule 3 which provides as under:- "R.3. Joinder
of causes of action.
Save as otherwise provided, a plaintiff may unite in the same suit several
causes of action against the same defendant, or the same defendants jointly;
and any plaintiffs having causes of action in which they are jointly interested
against the same defendant or the same defendants jointly may unite such causes
of action in the same suit.
Where causes of action are united, the jurisdiction of the Court as regards the
suit shall depend on the amount or value of the aggregate subject-matters at
the date of instituting the suit." These two provisions, namely, Order 1
Rule 3 and Order 2 Rule 3 if read together indicate that the question of joinder
of parties also involves the joinder of causes of action. The simple principle
is that a person is made a party in a suit because there is a cause of action
against him and when causes of action are joined, the parties are also joined.
the respondent No.1 in his plaint had pleaded that from his current account in
a bank which was authorised to be operated by his father, namely, respondent
No.2 also, an amount of Rs.7,000/- was lent by a cheque to the appellant. Since
the money had reached in the hands of the appellant, though not directly
through respondent No.1 but via his father, he had a cause of action against
both the defendants, namely, the appellant and respondent No.2 both of whom
were, therefore, impleaded as defendants in the suit particularly as it was one
transaction in which both were involved. In this situation, therefore, if the
suit was dismissed against one of them by the trial court, respondent No.1 had
the right to file an appeal against the person against whom the suit was
dismissed, notwithstanding that it was decreed against the other.
counsel for the appellant next contended that the trial court was justified in
recording a finding that it was a transaction which had taken place directly
and personally between respondent No.2 and the appellant in which respondent
No.1 had, at no stage, figured and, therefore, the suit was decreed only
against defendant (respondent) No.2 and not against the appellant. It is also
contended that the trial court was justified in recording a finding that the
case of "agency" was not established and the High Court was not
justified in upsetting that finding.
contention too has no merit.
defendant No.1 had an account in the Central Bank of India Limited, Sambalpur
Branch which his father, namely, respondent No.2, was authorised to operate.
also an admitted fact that it was from this account that the amount was
advanced to the appellant by respondent No.2. It has been given out in the
statement of respondent No.2 that when the appellant had approached him for a
loan of Rs.7,000/-, he had explicitly told him that he had no money to lend
whereupon the appellant had himself suggested to advance the loan from the
account of respondent No.1 and it was on his suggestion that the respondent
No.2 issued the cheque to the appellant which the appellant, admittedly, encashed.
This fact has not been controverted by the appellant who did not enter the
witness box to make a statement on oath denying the statement of defendant
(respondent) No.2 that it was at his instance that respondent No.2 had advanced
the amount of Rs. 7,000/- to the appellant by issuing a cheque on the account
of defendant (respondent) No.1. Having not entered into the witness box and
having not presented himself for cross-examination, an adverse presumption has
to be drawn against him on the basis of principles contained in illustration
(g) of Section 114 of the Evidence Act.
early as in 1927, the Privy Council in Sardar Gurbakhsh Singh v. Gurdial Singh
and another, AIR 1927 Privy Council 230, took note of a practice prevalent in
those days of not examining the parties as a witness in the case and leaving it
to the other party to call that party so that the other party may be treated as
the witness of the first party. Their Lordships of the Privy Council observed
as under:- "Notice has frequently been taken by this Board of this style
of procedure. It sometimes takes the form of a manoeuvre under which counsel
does not call his own client, who is an essential witness, but endeavours to
force the other party to call him, and so suffer the discomfiture of having him
treated as his, the other party's, own witness.
is thought to be clever, but it is a bad and degrading practice. Lord Atkinson
dealt with the subject in Lal Kunwar v. Chiranji Lal (1), calling it "a
vicious practice, unworthy of a high-toned or reputable system of
advocacy." They further observed as under:- "But in any view her
non-appearance as a witness, she being present in Court, would be the strongest
possible circumstance going to discredit the truth of her case." Their Lordships
also took note of the High Court finding which was to the following effect:-
"It is true that she has not gone into the witness box, but she made a
full statement before Chaudhri Kesar Ram, and it does not seem likely that her
evidence before the Subordinate Judge would have added materially to what she
had said in the statement." They observed:- "Their lordships
disapprove of such reasoning.
true object to be achieved by a Court of justice can only be furthered with
propriety by the testimony of the party who personally knowing the whole
circumstances of the case can dispel the suspicions attaching to it. The story
can then be subjected in all its particulars to cross-examination." This
decision has since been relied upon practically by all the High Courts. The
Lahore High Court in Kirpa Singh vs. Ajaipal Singh and others, AIR 1930 Lahore 1, observed as under:- "It is
significant that while the plaintiffs put the defendant in the witness-box they
themselves had not the courage to go into the witness-box.
were the best persons to give evidence as to the "interest" possessed
by them in the institution and their failure to go into the witness-box must in
the circumstances go strongly against them." This decision was also relied
upon by the Bombay High Court in Martand Pandharinath Chaudhari vs. Radhabai Krishnarao
Deshmukh, AIR 1931 Bombay 97, which observed as under:- "It is the bounden
duty of a party personally knowing the facts and circumstances, to give
evidence on his own behalf and to submit to cross-examination and his
non-appearance as a witness would be the strongest possible circumstance which
will go to discredit the truth of his case." The Lahore High Court in two
other cases in 1934, namely, Bishan Das vs. Gurbakhsh Singh and another, AIR
1934 Lahore 63(2) and Puran Das Chela vs. Kartar Singh and others, AIR 1934 Lahore 398 took the same view.
Bench of the Patna High Court in Devji Shivji vs. Karsandas Ramji and another,
AIR 1954 Patna 280, relying upon the decision of the Privy Council in Sardar Gurbakhsh
Singh vs. Gurdial Singh and another (supra) and the Madhya Pradesh High Court
in Gulla Kharagjit Carpenter vs. Narsingh Nandkishore Rawat, AIR 1970 Madhya
Pradesh 225 have also taken the same view. The Madhya Pradesh High Court also
relied upon the following observation of the Calcutta High Court in Pranballav Saha
& Anr. vs. Smt.Tulsibala Dassi & Anr., AIR 1958 Cal. 713 :- "The very fact that the defendant
neither came to the box herself nor called any witness to contradict evidence
given on oath against her shows that these facts cannot be denied. What was
prima facie against her became conclusive proof by her failure to deny.
The Allahabad High Court in Arjun Singh vs. Virender Nath and another, AIR 1971
Allahabad 29, held that :- "the explanation of any admission or conduct on
the part of a party must, if the party is alive and capable of giving evidence,
come from him and the court would not imagine an explanation which a party
himself has not chosen to give." It was further observed that:- "If
such a party abstains from entering the witness box it must give rise to an
inference adverse against him.
Division Bench of the Punjab & Haryana High Court also in Bhagwan Dass vs. Bhishan
Chand and others, AIR 1974 Punjab & Haryana 7, drew a presumption under
Section 114 of the Evidence Act that if a party does not enter into the witness
box, an adverse presumption has to be drawn against that party.
the principles stated above to the instant case, it would be found that in the
instant case also the appellant had abstained from the witness box and had not
made any statement on oath in support of his pleading set out in the written
statement. An adverse inference has, therefore, to be drawn against him. Since
it was specifically stated by respondent No.2 in his statement on oath that it
was at the instance of the appellant that he had issued the cheque on the
account of respondent No.1 in the Central Bank of India Ltd., Sambalpur Branch,
and the appellant, admittedly, had encashed that cheque, an inference has to be
drawn against the appellant that what he stated in the written statement was
not correct. In these circumstances, the High Court was fully justified in
decreeing the suit of respondent No.1 in its entirety and passing a decree
against the appellant also.
the reasons stated above, we find no merit in this appeal which is dismissed