NABIDAD KHAN Vs. ABDUL RAHMAN

JUDGEMENT

(1.) THIS is a plaintiff's application in revision against the judgment and decree of the Judge of the Small Cause Court at Benares dismissing his suit against the opposite party. The plaintiff claims Rs. 83-14-0 due on a bond of 29 June 1927, executed by the opposite party in favour of the plaintiff. The bond recites payment of cash as consideration. The real facts are that not a penny was paid by the plaintiff to the defendant. What happened was as follows : One Mohammad Baksh alias Mahngo who is the defendant's brother's son-in-law took some gold to make some ornaments for the plaintiff. Mohammad Baksh prepared the ornaments but they were not satisfactory and he took back the ornaments to prepare others. The gold of which the plaintiff was the owner thus remained with Mohammad Baksh until he was traced by the plaintiff to have come to attend a wedding at the defendant's house. The plaintiff then instituted a criminal complaint against Mohammad Baksh and obtained a warrant for his apprehension. It is also proved that the complaint was sent to the police for investigation. It appears what the plaintiff intended to do was to arrest Mohammad Baksh at the house of the defendant while the wedding party was there. It appears that the defendant executed the bond and undertook the liability of Mohammad Baksh and the plaintiff got his complaint dismissed.

(2.) THE defendant pleaded that there was no consideration for the contract and that the bond was executed under undue influence. It is difficult to say that there was no consideration for the bond, and it is difficult to bring the case as one in which the contract was entered into by undue influence bearing in mind the definition of " undue influence" as defined by the Contract Act. That however does not dispose of the case. THE plaintiff's difficulty is Section 23, Contract Act. I am of opinion that the plaintiff's suit must fail as the object and consideration of the agreement was the withdrawal of the prosecution. THE defendant was not interested in any way with the original liability of Mohammad Baksh and although that point was not pleaded in the Court below, the evidence of the plaintiff taken with the circumstances of the case to my mind makes it clear that the case comes within the purview of Henry Williams V/s. James Beyley [1866] 1 House of Lords 200. Mr. Malik has referred me to the case of Onkar Mal V/s. Ashiq Ali and similar cases. All these are cases where the agreement had been entered into by the party who was personally liable or who was personally interested in the matter. In the present case the defendant must be considered to be a third party : see also . I am therefore of opinion that this revision must fail and I dismiss it with costs.