HIMMATMAL Vs. SHAH MAGHJI KHUBAJI

JUDGEMENT

(1.) THIS is a second appeal by the defendant from judgment of the Civil Judge, Sirohi, dated 28th July, 1952, upholding the decree of the Munsiff, Sirohi, dated 29th January, 1952.

(2.) THE facts giving rise to it are, that there is a joint family firm which carries on business in gold and silver at Sheoganj, in the name of Shah Magaji Khubaji. As managers of the said firm and also in the name of the firm, the plaintiffs Shah Achaldas and Kundanmal brought a suit for Rs. 1659/4/-against the defendant Shah Himmatmal on the basis of their account-books. It was averred by the plaintiffs that the defendant purchased and sold gold mohars at Sheoganj through the plaintiffs' agency. Business transactions between the parties related to three vaidas, namely, of Bhadwa Vadi 30, Asoj Sudi 15, and Asoj Vadi 30 of Svt. 2001. THE dates were calculated according to Gujrati system. According to the plaintiff, the defendant suffered in the first transaction, a loss of Rs. 1187/1/-, in the second transaction, he further suffered a loss of Rs. 1692/3/-, and in the third one he again suffered a loss of Rs. 1956/4/. It was stated that the defendant paid Rs. 187/8/-, Rs. 892/3/- and Rs. 1256/4/-towards the said losses respectively, and that Rs. 2500/- thus remained outstanding against the defendant. It was also stated that the defendant further paid an amount of Rs. 500/ -. on Kati Sudi 9 and that Rs. 475/- and Rs. 126/-were credited to his account on account of gains in other transactions. Thus, after deducting Rs. 1,101/- from the amount of Rs. 2500/-, the defendant was still liable to pay Rs. 1,399/- to the plaintiffs as principal amount. To this the plaintiffs added Rs. 260/4/- for interest and prayed for a decree for Rs. 1,659/4/ -.

(3.) THE next contention of the appellant's counsel is that the defendant has examined two witnesses to prove that the transactions between the parties were of a wagering nature and that their evidence has been improperly rejected by the courts below. He has led this Court into the statements of these witnesses. I have gone through the statements and find that they have been rightly rejected by the courts below and it cannot be correctly argued that their evidence has been misread. As observed in the case of Poonam Chand vs. Firm Gulabchand Poonamchand (1) (1953 R. L. W. 133.) "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. " Both the witnesses produced by the appellant have no personal knowledge of the transactions between the parties, and therefore it cannot be said that the defendant had successfully discharged the onus which was placed on him.