BHIKULAL LAXMICHAND MAHEAND Vs. GANPATI SITARAM PATWARI

JUDGEMENT

(1.) THE plaintiffs sued on a bond of principal Rs. 100, dated 16th September 1936. Defendant admitted execution but denied that any cash consideration had been received. He explained that he had agreed to purchase a portion of a field from plaintiffs for Rs. 600 and as plaintiffs refused to get the sale deed registered unless defendant paid Rs. 100 by way of earnest money, defendant who had no cash executed the bond in suit by way of this earnest money. Defendant added that plaintiffs had not executed any sale deed for this portion of the field. Plaintiffs persisted in their evidence in trying to prove that the bond was executed for cash consideration, but the lower Court has believed defendant's version. As it had not been pleaded on behalf of plaintiffs that they are entitled to the amount even by way of earnest money, the Court thinks that it is precluded from considering that point and that the case stands or falls on the simple ground whether the consideration was paid in cash or not. This point being found against the plaintiffs the suit was dismissed.

(2.) THE question in revision then is whether that way of looking at the facts was correct and legal. Learned Counsel for the plaintiffs says that on the admission of execution the only question for consideration was whether the bond was for consideration, and on the finding that it was for earnest money the answer was in the affirmative even though, plaintiffs' assertion about the nature of the consideration was not upheld. Reference is made to Lal Singh v. Chaitram (02) 15 C.P.L.R. 24 where the custom in this country of describing a bond for previous debt as being for cash was mentioned, and the plaintiff was allowed to prove that on such a bond the consideration was really due on an old account. In the present case, of course, the plaintiffs stuck to their previous statement which was found against them. In Loola v. Pyare A.I.R. 1915 Nag. 74 it was held that the Court was entitled to apply the law to the facts actually proved by the evidence even though the allegations of both parties were found to be untrue and incorrect. This was followed in Faiz Mahamed v. Sheikh Wajid A.I.R. 1924 Nag. 189 where it was said that a suit cannot be dismissed for a false averment. So in Gajadhar v. Meghraj it was laid down that plaintiff who fails to prove all the facts alleged by him may yet obtain the whole or any part of the relief claimed by him if the facts pleaded by the defendant and found by the Court show him to be entitled to it. That case was followed in Narainrao v. Hanumantram . In Sri Mahant Govind Rao v. Sita Ram Kesho (99) 21 All. 53 their Lordships recognized that as a rule relief not founded on the pleadings should not be granted; but in the case before them where both parties had made excessive demands and both were in the wrong the plaintiffs were found entitled to a declaration of their true title as the substantial matters constituting title of all the parties had been touched obscurely in the issues and were put in evidence and discussed in the lower Courts.