BAWA SINGH Vs. JAGDISH CHAND

JUDGEMENT

(1.) THE facts giving rise to this Letters Patent appeal are these: The premises, which constitute a flour-mill, were given on lease for a period of one year by Jagdish Chander to Suraj Bhan and kishori Lal on 9th February, 1955. On 17th July 195 an accident occurred as a result of which bawa Singh, petitioner-appellant, sustained curtained injuries as a result of which his arm had to be amputated above an elbow joint. He applied for compensation under the Workmen's Compensation Act on the 1st October 1955 and the claim was preferred against Jagdish Chander, Suraj Bhan and Kishori Lal. The learned commissioner by his order dated 30th July 1956 absolved Jagdish Chander from liability but allowed compensation to the extent of Rs. 3,940 against Suraj Bhan and Kishori Lal. Costs of the case incurred after 31st January 1956 were also allowed.

(2.) FEELING aggrieved by the order absolving Jagdish Chander the workman Bawa Singh came up in appeal to this Court which was dismissed by the learned Single Judge on 4th April 1958. The question which arose before the learned Single Judge was that by virtue of a term of the lease deed by which the premises in question along with the machinery were let out by Jagdish chander to Suraj Bhan and Kishori Lal, Bawa Singh workman (the present petitioner-appellant)had to be retained in service by the lessees for maintaining and looking after the flour-mill with the result that he must be deemed to be in the employment of Jagdish Chander. The original lease deed, from the very nature of things, must have been with Jagdish Chander the proprietor lessor; and indeed there is evidence in the record that the original document remained with him after execution by the lessees. Jagdish Chander, though a party to the proceedings, did not choose to appear in the witness-box nor was the lease deed produced. The learned Judge in Single Bench, although feeling dissatisfied with the conduct of Jagdish Chander which was described not to be above-board in withholding the lease deed and in keeping away from the witness-box, as he was in the best position to explain the whole situation, nevertheless gave decision against the workman on the ground that Bawa Singh's version that Jagdish chander had to pay his salary could not be accepted. The learned Judge expressed himself, while dealing with this point, in the following words:

(3.) THE above reproduction of the relevant portion of the judgment of the learned Single Judge clearly shows that he was influenced exclusively by the fact that the lease money which had been fixed at Rs. 125 per meanness was not sufficient to pay the salary of the workman which amounted to Rs. 125 per mensem in cash, plus some grain and fuel wood. The learned Single judge also seems to have been of the view that it was only Bawa Singh's statement which constituted the sold evidence on this part of the case on the present record. The attention of the learned Judge does not seems to have been drawn to the testimony of khushi Ram, petition-writer, who had himself scribed the lease deed. This witness who has appeared as P. W. 7 stated on oath that at the time of the execution of the lease deed Bawa Singh workman was present and it was expressly incorporated in the deed that Bawa Singh would continue to be a Mistry and that he would be paid by the proprietor; the proprietor being Jagdish chander. The salary would be paid to the workman on behalf of Jagdish Chander proprietor. It was then stated by the witness that Bawa Singh on behalf of the proprietor would continue in service but he would be paid by the contractor. Suraj Bhan and Kishori Lal have also appeared as witnesses but their testimony on this point is far from illuminating. Kishori Lal has made a statement that within a short time of the commencement of the lease he went away after handing over the mill to Suraj Bhan and that he has practically no knowledge about the details. Suraj bhan has admitted the execution of a stamped lease deed, the original of which was with Jagdish chander and a copy with the witness. He has merely stated that Bawa Singh used to work the mill before the lease in question and thereafter he was retained by the lessees. He too has not cared to produce a copy of the lease deed which admittedly had been given to him nor has he produced any account books. Bawa singh workman has also appeared as P. W. 10 and he has expressly stated that at the time of the execution of the lease deed which was scribed by Munshi Khushi Ram he was present and that jagdish Chander stated that his own Mistry must remain in service and that the workman (Bawa singh himself) was selected to be the proprietor's (i. e. Jagdish Chander's) Mistry. He has further stated that the salary had to be paid by Jagdish Chander and that there was a term to this effect in the lease deed itself. Although the workman had expressly made this statement in his examination-in-chief, in the cross-examination neither the lessor nor the lessees put any question challenging the correctness of this statement. The original lease deed having been withheld by Jagdish Chander against whom the claim for compensation was being made and he himself also having abstained from appearing in the witness-box, in my opinion, a very strong presumption must be raised against Jagdish Chander, who has withheld the best evidence. Withholding of best evidence in the possession of parties has been described by the Supreme court as "inversion of sound practice": see Smt. Tara Devi v. Lal Chand, Civil Appeal No. 362 of 1957 (SC ). This aspect was also considered by me sitting in Single Bench in Bansi Ram v. Padam Sen, Civil Revn. No. 521 of 1958. As a result of this discussion, I would unhesitatingly draw an inference against Jagdish Chander and accept the version given by Bawa Singh especially when it finds ample support and corroboration from the testimony of Khushi Ram, the scribe.