LAWS(KER)-1958-7-16

ALI MAMMAD KUNHI Vs. KUNHI RAMAN NAIR

Decided On July 29, 1958
ALI MAMMAD KUNHI Appellant
V/S
KUNHI RAMAN NAIR Respondents

JUDGEMENT

(1.) The plaintiff in a small cause suit is the petitioner. He sued for recovery of a sum of money from defendants 1 and 2 on the allegation that the 3rd defendant was a subscriber in a Kuri conducted by them, that after he bid 1/4th of the ticket and received the prize amount he defaulted payment of subscriptions from the 7th instalment, that the plaintiff was substituted in his place and that he paid altogether a sum of Rs. 325/- till the kuri collapsed on account of the default of defendants 1 and 2. Defendants 1 & 2 denied the plaint claim and contended that the plaintiff was not a subscriber as alleged in the plaint and that subscriptions have not been received from him. Both sides adduced evidence and disbelieving the plaintiffs evidence, the Court below dismissed the suit. The plaintiff has therefore preferred this civil revision petition.

(2.) Learned counsel for the appellant did not attack the finding of fact recorded by the learned Munsiff. The point raised by him was tha t the plaintiff had agreed to take special oath in a mosque and that defendants 1 & 2 had agreed to have the suit decreed in case the plaintiff took the oath. It was urged that the learned Munsiff did not advert to this fact in disposing of the suit. It is not contended that the suit should have been decreed when the defendants failed to act up to the agreement regarding the special oath. The officer deputed by the court to have the oath administered has reported that the agreement could not be implemented as the 1st defendant who was present failed to pay a sum of money demanded by the authorities of the mosque. Apart from all other considerations, it has to be stated that the defendants had not agreed to incur any expenditure towards this and there was justifiable cause for him to withdraw. Even if the defendants had backed out of the agreement without just cause, the suit could not have been decreed on such default. See Shah Nawaz v. Ghulam Mohammad and another ( AIR 1948 Lah. 78 ). The decisions cited by the learned counsel for the petitioner do not say that a decree should be passed in favour of the plaintiff under such circumstances. The learned Munsiff appears to have been aware of the circumstances under which the taking of the special oath did not take place. After the report regarding the same was received he recorded that fact and posted the case for trial and the plaintiff acquiesced without demur. In fact the whole evidence was adduced after this and in these circumstances it cannot be said that the court below acted with material irregularity. The decree passed by the court below must therefore be confirmed.

(3.) The civil revision petition fails and is dismissed with costs.