KAUSHAL KISHORE Vs. RAM DEV

JUDGEMENT

(1.) THE Judgment of the court was delivered by

(2.) THIS case has had a somewhat curious course inasmuch as the two lower courts<PG>1000</PG>of appeal were under a clear misapprehension as to the finding of a fact by the trial court. It arises out of an application lor adjudication of certain persons (hereinafter called the debtors) as insolvents.

(3.) THE fact which the petitioning creditors set out to establish was the incident of18/4/1950. THE petitioning creditors sought to prove that on that date Mohan Lal, Gujjar Mal, Nand Kishore, Ram Dev and Murari Mal and some others went to the debtors' shop of Bhowani Pershad-Shiv Shanker and there met Bhowani Pershad and Shiv Shankar and asked for payment of the monies dueto them and thereupon Shiv Shankar and Bhowani Persliad stated that they had nomoney and would not pay and that the creditors could do whatever they liked. THEquestion is whether this incident happened. THE first witness produced by the petitioning creditors on' this point was Phul Chand son of Kidar Nath. He gave evidence on4/5/1951. He said his wife's brother Umrao Singh was a creditor of the debtors. Abouta year ago he made a demand from the debtors but did not get any reply. He does notsay which of the debtors he met. Neither does he say that any of the debtors said anything in reply to the demand for payment. THErefore the evidence of this witness doesnot establish the statements alleged to have been made by Bhowani Pershad and ShivShanker. He does not say that any one else was with him when he is said to have madethe demand. With regard to this witness the trial court remarked that he was an interested witness. THEre is nothing to show that this remark was not justified. THEHigh court stated that this witness had said that he was told that the debtors were notmaking any payment. THE High court was obviously in error in this. All that the witness appears to have stated is as follows: