K M ABDUL SUBHAN Vs. S RAMAIAH

JUDGEMENT

(1.) The plaintiff brought a suit in the Court of the Additional Subordinate Judge, Chikmagalur, for the recovery of Rs. 10,000/- as damages or compensation in respect of an attachment before judgment obtained by the defendant on certain timber. The Subordinate Judge has decreed the suit for Rs. 5930/- and the defendant has appealed.

(2.) The plaintiff's case is that on 18-9-1946 the defendant, with the intention of causing trouble and loss to the plaintiff and in order to lower him in the estimation of others, had got wrongfully attached before judgment certain timber of the plaintiff worth about Rs. 23,800/- and that he had obtained that order on the strength of an affidavit containing a false allegation that the timber belonged to one Savandappa against whom he had filed a suit in the same Court for damages. The plaintiff had entered into an agreement with one Puttappa to deliver to him 3000 C. ft. out of those logs before the end of September 1946, that he could not fulfil that contract and had to pay some agreed liquidated damages to him in consequence, that the timber had also fallen in value and that he had suffered by way of loss on his investment. The defendant pleaded that he had filed a suit for the recovery of Rs. 5500/- against Savandappa and had got the timber in question, which really belonged to Savandappa, attached before judgment on proper and sufficient grounds and that the plaintiff was merely a writer of Savandappa and was not the owner of the logs. He further pleaded that the damages claimed were remote and that the plaintiff was not either in fact or in law entitled to any damages. The plaintiff filed a reply wherein he specifically pleaded that he had purchased the timber from one Dr. Ammanna of Tarikere on 25-2-1946 as evidenced by a bill given by Dr. Ammanna and that the plaintiff, knowing the circumstances, had still got it attached as belonging to Savandappa.

(3.) The learned Subordinate Judge has held that the timber belonged to the plaintiff and that he had purchased it from Dr. Ammanna. Before us Mr. Somanath Iyer, learned Counsel for the Appellant, had argued that that finding of the learned Judge is not correct. He contends that the evidence in the case is altogether too meagre for establishing the plaintiff's ownership of the logs. He urges that neither the plaintiff nor Savandappa, who has been examined as P. W. 8, have produced their accounts and that Ammanna, who is alleged to have sold the logs to the plaintiff, has not been examined. He further urges that the omission to examine Am manna with reference to the accounts is fatal to the plaintiff's case: and in support of that contention he has strongly relied on a case reported in 'BAJRANG LAL v. SITA RAM', AIR 1949 Cal 457. He has pointed out that there is some discrepancy as regards who actually cut and removed the logs from the estate and deposited them in the Electric Colony grounds at Tarihere and that the plaintiff has not got P. T. marks affixed to those logs which he ought to have done if he was their owner. He has relied strongly on the evidence of D. W. 2, a Municipal Clerk, to show that the plaintiff, who is admittedly known as writer Ramiah, was merely a servant of Savandappa. There is no doubt that the plaintiff has not placed before the Court either the best or all the evidence that he could have done to prove his ownership of the logs. But in the circumstances of the case, however, it must be remembered that the defendant came forward with a specific case that the timber belonged to Savandappa and not to the plaintiff and he had also attached them on that basis. Savandappa came before the Court and repeated what he had already stated on previous occasions and in connection with the claim petition which the plaintiff had filed in Miscellaneous Case No. 9 of 46-47 that he did not claim the timber as his own and that it really belonged to the plaintiff. The burden on the plaintiff of proving that the timber did not belong to Savandappa was thereby substantially reduced. (His Lordship discussed the evidence and proceeded :)