JATINDRA NATH DUTTA Vs. SURESH CHANDRA RAY CHOUDHURY

JUDGEMENT

(1.) This appeal is by the defendant and arises out of a suit for account. The Court below has passed a decree in terms of the prayers in the plaint and the defendant has been called upon to render an account for the period of his service, which means an account from the 12th Bhadra 1313 to the 10th of Jaistha 1320 B.S. He has also been required to submit to the plaintiffs certain papers mentioned in Schedule ka of the plaint. The facts, so far as it is necessary to state them, seem to be these. The defendant was appointed Naib of the plaintiffs Zemindari at Rangamatia. He executed a kabuliyat and entered into service on the 28th August 1908, or the 12th Bhadra 1313 B.S. He continued in service till his dismissal on the 11th Jaistha 1330, corresponding with 25th May 1913. There is no dispute as regards these fasts, The defence of the defendant was that, as a matter of fast, he had rendered accounts till the year 1317 and that he was preparing his account; for the other years when he was dismissed and the Sudder Naib same to his Outohery and took possession of all the papers without giving him any receipt for the same. He said that it was not possible for him to render an account without having access to those papers which were in the possession of the plaintiffs. He also raised various other objections such as limitation, etc, as will appear from the issues framed in the suit. The more important of these objections have been urged before us on his behalf by his learned Vakil in support of the appeal. Four questions have been raised and, if any one of these is decided in favour of the appellant, the plaintiffs suit will have to be dismissed. It has been first argued that, after the appointment of the defendant, the plaintiffs appointed two successive Jamanabishes who were given independent powers and that, therefore, there was a renunciation or revocation of the contract within the meaning of Sections 201 and 207 of the Indian Contrast Act. It has been next argued that the plaintiffs not having produced the account papers made over to them cannot sue for any account and, in support of this contention, reliance has been placed on a decision of this Court [ Upendra Kishore Rai Chowdhury v. Ram Tara Debya Chaudhurani 4 Ind. Cas. 542 : 13 C.W.N. 696 ]. The next argument on behalf of the appellant is that the case is one governed by Article 89 of the Limitation Act and not by Article 116, and that there having been from time to time a demand for account and noncompliance with such demand on the part of the defendant, the claim for account previous to such demand must be held to have been barred. These are the principal points that have been urged in support of the appeal. We think it will be convenient to deal with the second point first.

(2.) The plaintiffs brought their suit about two years after the dismissal of the defendant. In the plaint they did not admit that any accounts had been rendered or any nikash papers filed by the defendant. Long after the defendant s written statement was filed, in which he alleged that he had rendered nikash up to 1317, the plaintiffs prayed for an amendment of the plaint. By that amendment, they admitted that the defendant had compiled a nikash furdi up to the year 1307 and had delivered it to the plaintiffs after signing it and they filed the furdi along with the petition for amendment. That shows that the plaintiffs did not some to Court with a straightforward case. It also appears that they claimed papers from the defendant which are mentioned in Schedule ka of the plaint, which were clearly in their possession. We have been referred by the learned Yakil for the appellant to a list of papers which were filed by the plaintiffs in the Balur Ghat Court in a suit against one of the gomastas serving under the defendant, some of which at least are identical with the papers claimed from the defendant. Circumstances such as these throw very considerable doubt on the bona fide of the plaintiff s claim.

(3.) Coming now to the evidence on the point, we find that, so far as the accounts are concerned, the only dispute between the parties was with reference to the bilan jama kharach and the bilan jama kharach only. A perusal of the numerous letters that passed between the defendant and the plaintiffs manager makes that matter perfectly clear. It also shows very clearly that all the bilan jama kharach up to the end of 1(sic)17 had been filed. If these papers have not been explained, the fast remains that the plaintiffs never gave the defendant an opportunity to explain them, and they have not up to this moment shown how these papers are in any way incomplete or incorrect although the vouchers in support of them are with the plaintiffs, The question, therefore, narrows down to the account for the period from 1318 till the defendant s dismissal in Jaistha 1320 B.S. As regards this period it seems to us that no question of limitation arises and the learned Yakil for the defendant has, so far as this part of the claim is concerned, argued that though his client is willing to render an account of the bilan jama kharach in respect of this period, it is impossible for him to render such an account until the papers which were in his possession and which he either made over to the plaintiffs Sudder Naib or were seized by that officer and taken away by him without giving a receipt therefor are produced. The plaintiffs, on the other hand, say that this story of these papers having been made, over or seized by the Sudder Naib is untrue. They rely upon certain discrepancies in the evidence of the defendant as to the date on which the papers are alleged to have been seized, whether it was on the 12th or the 14th. These discrepancies lie within a very narrow compass. The witnesses were deposing about more than four years after and discrepancies like these do not necessarily throw any doubt on the truth of the evidence given by them. In support, however, of the story that the papers were seized by the Sudder Naib, Kali Frosonno, we have two strong circumstances in favour of the defendant. In the first place, it appears that, immediately after the occurrence, the defendant not only lodged an information at the thana about the seizure of those papers but also sent a petition to the plaintiff s manager stating the facts and expressing his inability to prepare an account without having access to those papers. The two most important witnesses on the point were the Sudder Naib, Kali Prosonno and Debi Parsad the jamanabish, but they have not been examined, the reason assigned being that they are no longer in the service of the plaintiffs and one of them, Debi Parsad, has taken service under the Chota Taraf with whom the Bara Taraf is in terms of enmity. That may or may not be so, but if the plaintiffs had brought the suit earlier, probably the evidence of these witnesses would have been available. Besides, it is not likely that the defendant would be allowed, when he was dismissed and the dismissal was in the presence of the Sudder Naib, to take away to his own house cartloads of papers from the Cutahery as is now alleged on behalf of the plaintiffs. That is a story which it is difficult for us to believe. On the whole, having regard to the conduct of the plaintiffs in exaggerating their claim and in suppressing facts which they ought to have admitted, we think the balance of probability is on the side of the story told by the defendant and his witnesses and we are of opinion that it is impossible for the defendant to render an account for the years 318 and 1319 without the plaintiffs producing the papers that it has been proved are with them. They have through their learned Vakil expressed their inability to produce those papers on the ground that they are not in their possession. That being so, we think it would be useless to direct an account being taken from the defendant. In this view of the case, it is not necessary to decide the other points raised by the learned Vakil for the appellant. We accordingly decree the appeal and dismiss the plaintiffs suit with costs throughout.