SEWARAM Vs. BASTIRAM

JUDGEMENT

(1.) THIS judgment will dispose of second appeal No. 14 of 1950 preferred by the defendant and the cross-objections lodged by the plaintiff. 2. On 5th of April 1934, the defendant Sewa Ram executed a Rent-Note in favour of plaintiff Firm Anraj Basti Ram agreeing to pay rent at the rate of Rs. 18/- per mensem. It appears that rent for 76 months amounting to Rs. 1,368/- had fallen in arrears. Accordingly, the plaintiff Basti Ram instituted the present suit for the recovery of this amount and also for possession of the property by ejectment, and further prayed that decree for rent at the enhanced rate of Rs. 35/-per mensem from the date of the suit till the date of ejectment, and for interest at 6% p. a. till realization on the arrears of rent may be passed. Defendant Sewa Ram denied having executed the rent-note and pleaded that since Karni Dan was also a partner in the plaintiff-firm Anraj Basti Ram, Basti Ram alone was not competent to institute the suit. During the course of the proceedings i. e. , on 26th of May 1949, the defendant offered to be bound by the statement of the plaintiff as regards Karnidan's partnership in the firm and have a decree passed as prayed by the plaintiff. The actual statement made by him was in the following language: *** 3. On 23rd of June 1949, the plaintiff made the statement as required by the defendant and accordingly, the learned Sub-Judge decreed the suit in toto i. e. , passed the decree as below: (1) for possession by ejectment; (2) for the recovery of Rs. 1,368/-; (3) for interest at 6% p. a. on Rs. 1,368/-; and (4) for an enhanced rent at Rs. 35/- per mensem from the date of the suit till ejectment. 4. From this decree the defendant went up in appeal to the Court of the learned District Judge and addressed arguments only on two points viz. , those relating to enhanced rent and interest on the arrears of rent. It was contended on behalf of the plaintiff that since the defendant had agreed to abide by the plaintiff's oath, a proper decree had been passed. The learned District Judge, however, did not agree with this contention and after hearing the learned counsel for the parties held that decree for enhanced rent at the rate of Rs. 35/- per mensem was not justified on any authority. He also came to the conclusion that since there was no agreement to pay interest nor any usage having the force of law or otherwise the decree for arrears of rent should not have been passed. The result was that he accepted the appeal and instead allowed interest pendente lite, and future interest till realisation of the arrears of rent and ejectment from the suit property at 6% p. a. 5. The defendant has filed an appeal against this decree in this court and urged that interest pendente lite had not been granted by the learned Sub-Judge, and, accordingly, it was not open to the learned District Judge, on an appeal preferred by him, to allow it. The order granting future interest on arrears of rent till ejectment of suit property was also unjustified. The plaintiff has preferred cross-objections and the learned counsel on his behalf has contended that inasmuch as the suit had been decreed on the oath of the plaintiff, it was not open to the learned District Judge to set aside the decree for enhanced rent at the rate of Rs. 35/- per mensem from the date of the suit till ejectment. 6. It may be pointed out at the out set that the learned counsel for the plaintiff has frankly conceded that he had not claimed any interest on the arrears of rent up to the date of the suit and that the learned District Judge entered into an unnecessary discussion in respect of this matter. It has also been conceded that future interest on the arrears of rent till the date of ejectment could not be justified in law. 7. So far as the defendant's appeal is concerned, it involves an interpretation of the decree passed by the learned Sub-Judge. On the question whether interest pendente lite had been allowed to the plaintiff, the learned Sub-Judge did not mention any particular period while passing a decree regarding interest. When the matter came up before the learned District Judge, he interpreted the decree as if interest pendente lite had not been allowed. It is for this particular reason that he specifically directed while accepting the appeal that the plaintiff was entitled to interest pendente lite. Inasmuch as the learned Sub-Judge had not passed a decree for interest pendente lite, this question did not arise as the plaintiff had not filed an appeal in the Court of the District Judge. The defendant in this appeal had only prayed that future interest from the date of the decree till realisation should not be awarded against him. The question before the learned District Judge was, in the circumstances, very much narrowed down and it is obvious that on an appeal by the defendant, it was not open to him to modify the decree so as to widen its scope against the defendant and thereby place him in a worse position. 8. So far as the plaintiff's cross-objections are concerned, there is considerable force in the contention of the learned counsel on his behalf that inasmuch as the decree had been passed on the basis of the defendant's statement offering to have the suit decreed in case the plaintiff stated that Kami Dan was not a partner in the firm, it was not open to the learned District Judge to go into any of the questions agitated before him by or on behalf of the defendant. An argument to this effect was addressed in his court but he rejected it without assigning any reason. We, on the contrary, are of the view that there is considerable force in the contention of the learned counsel. Reference in this connection may be made to 1919 Lah. 138 (1) (Jamna Dass & others vs. Nanda and others.) and 1924 All. 126 (2) (Mithu Lal & another v. Sri Lal. ). Both these authorities support the contention of the learned counsel for the plaintiff. In 1919 Lah. 138 (1), the plaintiff sued to recover Rs. 500/- on account of the price of five buffaloes. In the course of the trial, the defendant stated that if the plaintiff would take a certain oath in a prescribed form and swear that the defendant had been present at a particular time and had stood surety for the return of the buffaloes, he would pay Rs. 500/ -. The plaintiff took the oath. It was held that the defendant had confessed judgment subject to a certain condition and that on the fulfilment of the condition there was no issue of law or fact to go into and the plaintiff was, therefore, entitled to a decree as the defendant had taken the oath in the prescribed form. To the same effect is also 1924 All. 126 where it was held that where a party agrees to abide by the oath of the other party or of any particular witness, he clearly takes the risk of the witness swearing falsely. In the case before us, the defendant contended that Karni Dan was a partner of the firm in whose favour the rent-note had been executed, and that accordingly, Basti Ram alone was not competent to institute the suit. At a certain stage of this litigation, he offered to be bound by the statement made by the plaintiff on this particular question and agreed that if that statement was made, the suit may be decreed against him. THIS statement was duly made on 23rd of June 1949 and the plaintiff stated clearly that Karni Dan was not a partner in the firm on the date the rent-note was executed. The result was that the suit came to be decreed, as prayed. In the circumstances, it was not open to the learned District Judge to discuss the question relating to the plaintiff's claim for enhanced rent. The learned counsel for the defendant-appellant urges that although a decree for enhanced rent was prayed for, no notice of eviction or enhancement had been served upon him, nor were any grounds mentioned in the plaint showing how a decree for enhanced rent was justified, and accor-dingly,even if the defendant had agreed to be bound by the oath, the court should still see whether a decree could be passed in law. After hearing the learned counsel at length, we are wholly unable to agree with the contention put forward by him, and are of the view that after a person has agreed to be bound by the statement of the other side on oath, no issue of law or fact arises and the plaintiff is entitled to a decree as prayed for by him. 9. The result is that both the appeal and the cross-objections partially succeed and the decree passed by the learned District Judge is modified as below: (i) Decree of the trial court as regards enhanced rent at the rate of Rs. 35/- per mensem from the date of the suit till ejectment is hereby restored; (ii) Decree passed by the learned District Judge in respect of interest pendente lite is hereby set aside. (iii) Decree for future interest from the date of the decree till ejectment is hereby set aside. 10. The decree of the trial court for further interest from date of decree till realization is maintained. Costs in this court and the court below will be paid by the appellant to the respondent and vice-versa according to their success and failure in this Court. .