NAND KISHORE Vs. LACHMI NARAIN

JUDGEMENT

(1.) THIS is an application for revision by the plaintiff Nand Kishore against the decree of the Small Cause Court, Jaipur City, dismissing the plaintiff's suit. The learned Small Cause Court Judge has held that the transactions on account of which the loss has been claimed by the plaintiff were wagering transactions. It has been argued by the learned counsel for the plaintiff-applicant that the defendant never set up a plea of wagering contract, nor was any issue framed by the learned Small Cause Court Judge on this point. It is further argued that no evidence was produced in the case, although the burden of proving that the transactions were wagering transactions lay upon the defendant. Rulings in --'sukdevdoss Ramprasad v. Govindoss Chathurbhujadoss & Co. ', AIR 1928 PC 30 (A) and -- 'poonam Chand v. Firm Gulab Chand Poonam Chand', 1950 RLW 133 (B) have been referred to. It was held by their Lordships of the Privy Council (AIR 1928 PC 30 (A)) that "the mere fact that contracts are highly speculative is insufficient in itself to render them void as wagering contracts; to produce that result there must be proof that the contract's were entered into upon the terms that performance of the contracts should not be demanded but that differences only should become payable. " In the ruling of this Court (1950 RLW 133 (B)), above referred to, it was held that "in order to establish the plea of wager it must necessarily be proved, in respect of each and every transaction separately, by the party raising the plea, that intention of both the parties, was at the time of entering the contract, to deal in differences only and under no circumstances to take delivery. The fact that no delivery was eventually taken and the parties adjusted the differences is not sufficient to prove the wagering nature of the transaction. What is required is to prove that at the time of entering into the transaction the intention of the parties was to deal in differences only. "

(2.) ON behalf of the opposite party reliance has been placed upon the rulings in -- 'doshi Talakshi v. Shah Ujamsi Velsi', 24 Bom 227 (C), -- 'motilal Partabchand v. Govindrara', 30 Bom 83 (D) and -- 'firm Ram Krishna Das Jawahar Lal v. Firm Mutsaddi Lal Murli Dhar', AIR 1942 All 170 (E ). In -- '24 Bom 227' (C) it was held that in spite of the terms for the delivery of cotton and forbidding of all gambling in differences, the Court was entitled to look into the real nature of the transaction in order to find out whether there was a contract for dealing, in differences only. In -- '30 Bom 83' (D) too it was held that the Court should not be misled by the apparent nature of the contract but should be astute to discover what in fact was the common intention of both parties, and should do all that is possible to see through the ostensible and apparent transaction into the underlying reality of the bargain. In the Allahabad case, -- 'alr 1942 All 170' (E), it was held that: " In the case of a pucca arhati transaction the real question is to ascertain what, as between the parties, was the real intention when they entered into the contract in question whether it was ever within their contemplation that goods should be delivered or whether their real intention was only to pay a difference on or after the due date. The mere circumstance that an opportunity is left open to the parties to complete their contract by actual delivery will not be allowed to deprive the Court of the power to consider whether that was their veal intention. "