SOM NATH SOOD Vs. KALU RAM

JUDGEMENT

(1.) Kalu Ram, plaintiff-respondent sought to recover a sum of Rs. 1,200/- comprising of Rs. 1,000/- as the principal amount advanced as loan to Som Nath, defendant-appellant, vide pronote Exhibit D.2 dated 29.4.1961, and Rs. 200/- as an interest thereon. The defendant admitted the execution of the pronote, but pleaded want of consideration. He also averred that the plaintiff was not entitled to the interest and the costs as he had not maintained any account in terms of the provisions of clauses (a) and (b) of sub-section (1) of Section 3 of the Punjab Regulation of Accounts Act, 1930, hereinafter referred to as the Act. The trial Court struck the following two issues :

(2.) Mr. B.S. Jawanda, learned counsel for the appellant-judgment-debtor, has argued that issue No. 2 had to be decided by the Courts below as preliminary issue and since both the Courts below have failed to decide issue No. 2 and went into the merits of the controversy, the judgments and decrees of both the Courts below stand vitiated. In support of his submission, he referred me to the provisions of Section 4(a) of the Act which is in the following terms :-

(3.) In the present case, both the Courts below have violated the aforesaid mandatory provisions of Section 4 of the Act. Accordingly, both the judgments and decrees of the Courts below stand vitiated and are accordingly quashed. The case is remitted back to the trial Court, which shall decide the suit afresh in accordance with the observations made above and according to law. The respondent shall pay to the appellant half the costs of this appeal. Appeal accepted.