THAKUR UMED SINGH Vs. AMOLAKCHAND

JUDGEMENT

(1.) THIS is a plaintiff's second appeal in a suit tor recovery of price of goods sold by the plaintiff to the defendant. This suit was partly decreed by both courts below to the extent of Rs. 911/12/3 as principal and Rs. 201/11/9 as interest.

(2.) THE main question in this appeal is whether the courts below have exercised their discretion properly in disallowing pendente lite and future interest to the plaintiff. In order to appreciate the point in controversy, a few facts require to be stated. The trial court decreed the plaintiffs' suit as stated above but disallowed pendente lite and future interest by a cryptic observation in its judgment that it did not consider it proper to allow any such interest to the plaintiff. Both parties felt aggrieved by this judgment and challenged it, the defendant by way of an appeal and the plaintiff by a cross-objection. It seems that the appeal and the cross-objection were both heard by the learned Civil Judge on the 21st September, 1956, and then the case was set down for judgment on the 24th September, 1956. On the lastmentioned date, the defendant's appeal was dismissed; but the judgment, by an unfortunate oversight, omitted to deal with the cross-objection altogether. Consequently, on the very next day, that is, the 25th September, 1956 this error was brought to the notice of the court below and it was prayed that the cross-objection should also have been decided but as it had not been, a prayer was made that the same be decided now. Notice was given of this application to the defendant but he chose to remain ex parte. Consequently, the learned Civil Judge considered the plaintiffs application and came to the conclusion that he was competent to decide the cross-objection and thereby rectify the mistake which had crept in. One more point was raised before the learned Civil Judge in the cross-objection and that was that the Munsiff had fallen into error in calculating the amount of interest payable to the plaintiff upto the date of the suit as Rs. 201/11/9 only while the correct figure should have been Rs. 209/3/9 as claimed in the plaint, although the actual amount of interest payable to the plaintiff at 6 per cent. per annum simple amounted to much more. The learned Civil Judge repelled this plea by holding that the Munsiff was correct in granting Rs. 201/11/9 as interest. As for the other point, the learned Civil Judge recognised in his judgment that the Munsiff had not given any reason for not allowing pending and future interest. He however, went on to hold that counsel for the plaintiff had not been able to convince him as to how the discretion exercised be the Munsiff was incorrect, and therefore, he concluded that he did not consider it proper to interfere with the discretion of that court. In this view of the matter, he disallowed the cross-objection leaving the parties to their own costs of the cross-objection. The plaintiff has now come up in second appeal to this Court.

(3.) IN this appeal, the same two points as were urged before the court below have been argued before me. Learned counsel for the defendant, however, raised a preliminary objection to the effect that the learned Civil Judge was not at all competent to hear and dispose of the cross-objection once the appeal had been decided and he had become functus officio and, therefore, the cross-objection must be thrown out on that ground alone.