HUSAIN UL ZAFAR KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a Plaintiff's appeal arising out of a suit for the recovery of Rs. 4,600/ - principal and Rs. 92/ - interest and interest pendente lite and future. The facts alleged by the Plaintiff are that he had an account No. 2t 095 in the savings bank in the post office at Etah. The account stood in his name under the guardianship of his father, M. Hafidul Zafar Khan and it had Rs. 5000/ - in deposit in the month of June 1948. On 15-7-1948 the Plaintiff's father withdrew a sum of Rs. 60/ - for the Plaintiff's use from the said account and the Pass Book was left with the clerk concerned at the post office for entry of interest, as suggested by the clerk. The Pass Book was not returned to the Plaintiff's father and remained in the post office for some time. In the first week of December 1948 the Plaintiff's father wanted to withdraw some money from the said account for the Plaintiff and went to the post office for the purpose. He asked the clerk concerned for the Pass Book but was told that the Pass Book could not be traced as a long time had elapsed and several clerks had been changed during the period. The clerk concerned, however, suggested to the Plaintiff's father to apply for the issue of a duplicate Pass Book alleging that the original Pass Book had been lost. Following this advice the Plaintiff's father made an application then and there for the preparation of a duplicate Pass Book. The said application was dictated by the clerk and scribed by the post office Jamadar, Jagdamba Prasad. It appears that during the preparation of this duplicate Pass Book it was discovered that a sum of Rs. 4600/ - had been withdrawn from the said account on 22-9-1948 by some unknown person. An application is said to have been made at once reporting the matter to the postal authorities and to the police and telegrams were also sent to the Deputy Postmaster-General and Superintendent of Post Offices Aligarh about this. It was alleged that neither the Plaintiff's father nor anybody on his behalf had made the sail withdrawal of Rs. 4,600/ - and the post office could not be exonerated from the liability of paying the said sum of Rs. 4.600/ - with interest to the Plaintiff.

(2.) The suit was contested on various grounds. It was denied that the Pass Book was ever left by the Plaintiff's father in July 1948 as alleged and that the withdrawal of Rs. 4,600/ - on 22-9-1948 had been made by the Plaintiff's father himself and the said withdrawal was not a fraudulent withdrawal by some other person, as alleged by the Plaintiff. It was also pleaded that the Plaintiff's father was negligent and responsible for the loss of the Saving Banks Pass Book and even if there had been a fraudulent withdrawal by some other person the post office was not responsible for the same in view of the rules of the post office savings bank which were binding on the Plaintiff. The validity of the notice under Section 80 of the Code of Civil Procedure was also challenged.

(3.) The trial court held the notice under Section 80 of the Code of Civil Procedure to be valid and properly served. It found that the Plaintiff had failed to prove that his father had left the Pass Book in the post office on 15-7-1948 as alleged and held that the Pass Book was lost on account of the negligence of the Plaintiffs father for which the post office was in no way responsible. It was also held that the amount of Rs. 4,600/ - was not actually withdrawn by the Plaintiff's father on 22-9-1948 and that this payment was made to some wrong person. The Defendant, however, was held to be not liable as according to the trial court, the savings bank rules were binding on the Plaintiff and as the Pass Book was considered to be lost through the negligence of the Plaintiff's father and there was a fraudulent withdrawal the post office could not be held to be liable. The Plaintiffs suit was therefore dismissed.