LAKSHMANA SAHU Vs. MSIMACHALA PATRA

JUDGEMENT

(1.) THIS is an application in revision against the judgment and decree of the Small Cause Court Judge of Berhampur in a suit for contribution which was brought by the plaintiff opposite party against the petitioner.

(2.) IT appears that a decree was obtained by Messrs. Addison & Co., against the plaintiff, the defendant and another person on the basis of a contract of hire and purchase by which the company had sold a typewriting machine on the instalment system. In the contract of hire and purchase the petitioner was described as the hirer and the plaintiff and one B. Maharana as guarantors. Subsequently, the company sued all these persons and obtained an ex parte decree. The company then transferred the decree to one Radha Krishna Sahu who attached the land of the plaintiff. In order to save his land the plaintiff deposited the decretal amount and the decree was satisfied. The plaintiff thereupon brought the present suit to recover the amount from the petitioner. The defence of the petitioner was that he was not the purchaser of the typewriter, but it was the plaintiff who was the real purchaser of the typewriter and it was he who had been making payments to the company. The learned Small Cause Court Judge held that the defence could not be entertained firstly because the decree which was obtained by Messrs. Addison & Co., was based on the footing that the defendant was the purchaser and secondly because under Section 92, Evidence Act, the defendant could not be allowed to adduce any oral statement for the purpose of contradicting or varying the terms of the contract which had been reduced to writing. Thus, the learned Small Cause Court Judge did not allow the defendant to adduce any evidence in support of his allegation and decreed the plaintiff's suit with costs. The present application is directed against his decree. 4. In my opinion neither Section 11, Civil P.C. nor Section 92, Evidence Act, can be said to constitute a bar to the defendant's right to substantiate his defence. In the suit which was brought by Messrs. Addison & Co., the plaintiff and the defendant were arrayed on the same side. The suit was brought on the footing that all the three persons who were parties to the contract were liable. The question as to which of the defendants was surety and who was the principal purchaser was not agitated by the defendants among themselves and was not decided. That being so, the decree in the previous suit will not operate as res judicata. 5. As to Section 92, Evidence Act, it is enough to say that there are at least two decisions of the Allahabad High Court in which it has been held that the words "between the parties to any such instrument" as used in the section refer to the parties who on the one side and the other came together to make the contract or disposition of property, and would not apply to questions raised between the parties on the one side only of a deed regarding their relations to each other under the contract: see Mulchand V/s. Madho Ram (88) 10 All. 421 and Shamsh-ul-Jahan Begam V/s. Ahmad Wali Khan (03) 25 All. 337. The last case is directly in point because in that case a person had sued as a plaintiff on the allegation that though in a mortgage bond he appeared as a co-obligor, he was in reality merely a surety. In that case it was held that evidence was admissible to show that the plaintiff executed the mortgage bond as a surety only. 6. The opposite view seems to have been taken by a single Judge in Muthukumaraswami Mudaliar V/s. Gobinda Padayachi A.I.R. 1932 Mad. 218 but I prefer to follow the decisions of the Allahabad High Court which were decided by two Division Benches of that Court. The decision of the learned Small Cause Court Judge therefore cannot be supported. IT must, however, be observed that the statements made in the document cannot be lightly treated because they at least amount to an admission by the defendant who was a party to the document. Whether the defendant will by his evidence be able to show that the admissions do not represent the correct state of things is a matter on which I cannot express any opinion. 7. The whole question will be decided with reference to such evidence as may be adduced by the parties. The defendant will be given an opportunity to prove his case and an opportunity will also be given to the plaintiff to adduce such, evidence as he chooses to offer to support his case that the defendant was the principal and not the surety. 8. The decree of the Court below is therefore set aside and the case is remanded to it for disposal according to law. Costs will abide the result. Hearing fee one gold mohur.