DEVA PRASANNA MUKHERJI Vs. LAKHI NARAYAN MANDAL

JUDGEMENT

(1.) This is an appeal by the plaintiff against the concurrent decisions of the Courts below by which they have dismissed his suit which was instituted on 26th November 1934, asking for a decree to be passed for rendition of accounts against defendant 1, and in case any sum is found due to the appellant a mortgage decree may be passed in favour of the appellant against defendant 1 as well as against defendant 2, who stood as surety for him to duly discharge his duties as gomasta of the plaintiff. The facts which are no longer in controversy may be stated thus. Defendant 1 was appointed gomasta of the plaintiff in POUS 1832 B.S. corresponding to December 1925, upon defendants 1 and 2 executing a duly registered zaminnama on POUS 7, of that year by which they hypothecated certain properties in schedule Kha ; defendant 1 also deposited Rs. 500 as cash security. On Agrahayan 7, 1385, defendant 1 was also entrusted with litigation in respect of Taluk Sulunga in possession of the plaintiff. (This was in addition to his earlier duties). It appears that defendant 1 used to render accounts every year to the plaintiff at the Sadar Katchery, the last account which he submitted related to the period 1336 to 1838 B. Section evidenced by Ex. 6 dated 14 Kartic 1339, when on explaining the accounts a sum of Rs. 797-8-4 was admitted to be due to the plaintiff from the defendant, who signed the document across a one-anna stamp. But it was stipulated in that document that if any difference would be found on enquiry at the Mufassil, defendant 1 would be liable together with any dues which might have become barred by limitation and which might subsequently come to light. After this conditional accounting defendant 1 remained in charge of the collections, but on this point there is a serious controversy between the parties which will be dealt with later. Defendant 1 was dismissed by letter No. 504 dated 14 Asarh 1840 B.S. and the general power of attorney in his favour was revoked by the plaintiff on 2l July, 1933.

(2.) The plaintiff's case is that after the dismissal of defendant 1 he came to learn that defendant 1 had misappropriated large sums of money and had not given a true account of the realization made through him up to 1338 B.S., that notwithstanding the supDDervision placed upon him, defendant 1 was able to realize surreptitiously sums from the tenants in 1339 and 1340, and that defendant 1 allowed a number of suits and decrees to become time-barred. Accordingly he instituted the present suit praying that the defendant should be asked to render a true account to him for the period of his agency. The defence to the action was that defendant 1 has rendered a full and true account to the plaintiff till the year 1838 B.S. and that nothing further is due from him than Rs. 797-8-4 although it is stated in the written statement that that amount also is not due from him because the amlas of the plaintiff and the plaintiff himself have wrongfully and unjustifiably not passed his accounts to the extent of Rs. 300 which were justly due to him. It was also asserted that defendant 1 did not make any realization in 1339 and 1340 B.S., that he had then ceased to be the agent of the plaintiff and as he was suspected falsely of misappropriation the plaintiff deputed his amlas and tahsiidars who were present throughout when realizations were made from the tenants in these two years and that defendant 1 merely signed the receipts whereas the money was taken directly by the amlas to the plaintiff.

(3.) A number of issues were struck by the learned Subordinate Judge of Dumka, but the material issue which fell for decision was issue 7, namely whether defendant 1 was liable to render accounts to the plaintiff. The learned Subordinate Judge came to the conclusion that defendant 1 had rendered full accounts to the plaintiff in 1338 B.S. and therefore he thought it was absurd for the plaintiff to call for accounts from defendant 1 after he had rendered full accounts in 1338 and when all the papers had been admittedly made over by defendant 1 to the plaintiff. With regard to the period 1339 to 1340 B.S. the learned Subordinate Judge took the view that as the plaintiff had taken away all the papers and responsibilities from defendant 1 it was not open to him to ask for accounts after he had fettered his agent by setting overseers on him. Accordingly he dismissed the suit on 31 March 1939, without recording any finding on the other issues and in particular on the liability of defendant 2. In so doing the learned Subordinate Judge failed to follow the repeated decisions of this Court where it had been pointed out, following the observations of their Lordships of the Judicial Committee that in all appealable cases it is eminently desirable that the Subordinate Courts should pronounce their decision on all the relevant issues so that if the superior Courts take a different view upon the issue which alone has been decided by the Subordinate Court, the parties litigant would be saved from the harassment of a consequent remand. This is exactly what has happened in this case.