IMAMBI Vs. ABDUL RAHIMAN SAHEB

JUDGEMENT

(1.) The petitioners before me were the original defendants in S.C. No. 97 of 1990. The original plaintiff who has been served and who does not appear, contended that the deceased Fakrusab had taken as many as 11 small loans from him from time to time and signed for them in the books of account regularly maintained by him in the course of his business. According to him, there was a balance of Rs. 2,521/- outstanding for recovery of which amount the present suit was filed. The transactions ended somewhere in the year 1988 after which, Fakrusab died and the suit was filed against his wife and sons in the year 1990. The plaintiff not only gave evidence, but produced his books of accounts and the relevant entries and he has identified and proved the signatures of Fakrusab and the learned trial Judge accepted this evidence and decreed the suit. The only defence pleaded on behalf of the four defendants was that Fakrusab was not an agriculturist, that he had no transactions with the plaintiff and that the entire claim is false. This plea has naturally been rejected by the Trial Court which was why the decree came to be passed. The present civil revision petition is directed against the passing of that decree.

(2.) A perusal of the record indicates to me that the four petitioners are very poor persons and that they belong to the lowest strata of society. Their learned Advocate informs that he has taken up the matter as a legal aid brief. He has also had difficulties in dealing with the petitioners who have hardly responded to the communications from him. The only issue involved in this case is as to whether the decree in question is sustainable or not. The petitioners' learned Advocate pointed out to me that even though the point was not urged before the Trial Court or not specifically in the memo, that there is one aspect of the matter which is very fundamental and which virtually goes to the root of the case. That is the basic question as to whether the suit was maintainable against the petitioners who are the original defendants. His submission is that admittedly, these were personal loans and furthermore, that the person who incurred the liability was dead on the date when the suit was filed. He submits that in a given case, provided necessary material is produced before the Court, the claim may survive against the legal heirs, but that this is not one such case and that therefore, the Court should straightaway set aside the decree on that ground. The learned Advocate submits that having regard to the status of the petitioners, that even though they should have taken up this plea of maintainability at an earlier point of time and even though this was not done, that he should not be precluded from urging this point which is virtually the only point is their favour at this stage of the proceedings.

(3.) It is well-settled law, that if a particular plea on a point of law that is very basic and fundamental has not been urged at some earlier stage, that a Court will normally not preclude a party from doing so if the circumstances so justify. To my mind, from what has been pointed out by the 'petitioners' learned Advocate, sufficient ground has been adduced for permitting him to urge this point though it is being done for the first time.