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PETITIONER:

ISWAR BHAI C. PATEL & BACHU BHAI PATEL

Vs.

RESPONDENT:

HARIHAR BEHERA & ANR.

DATE OF JUDGMENT: 16/03/1999

BENCH:

S.Saghir Ahmad, & M B Shah.

JUDGMENT:

S. Saghir Ahmad, J.

The 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 grandfather.

Respondent 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.

According 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 the appellant.

The 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

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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.

Respondent 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.

It was 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.

The 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 been

filed.

The 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

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Rs.8,400/- against both the defendants so that it could be

realised from both the defendants or from either of them.

This 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.

Since 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.

This can be viewed from another angle.

Order 1 Rule 3 provides as under:-

"R.3. Who may be joined as defendants.

All 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.

The 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.

This 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.

(1) 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.

(2) Where causes of action are united, the

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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.

Now, 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.

Learned 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.

This contention too has no merit.

Admittedly 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.

It is 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.

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As 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.

This 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.

The 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.

Plaintiffs were the best persons to give evidence

as to the "interest" possessed by them in the

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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.

A Divison 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. Sm.

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.

A 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.

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Applying 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.

For the reasons stated above, we find no merit in this

appeal which is dismissed with costs.