DIGBIJAI NATH Vs. TIRBENI NATH TEWARI

JUDGEMENT

(1.) This is an appeal by a defendant, Mahanth Digbijai Nath, who was sued by the respondent, Tirbeni Nath Tewari for a sum of Rs. 4001 with damages amounting to Rs. 1200 or in the alternative a sum of Rs. 611 by way of interest on the sum of Rs. dOOl. The parties reside in Gorakhpur. The plaintiff respondent is a contractor and the appellant is the owner of certain forest property at Sonari. It is common ground that on 5 July 1940, the parties entered into an agreement whereby the plaintiff undertook to pay the defendant a sum of Rs. 27,250 for certain rights of extraction from this forest. It is also common ground that a sum of Rs. 1001 was paid by the plaintiff as earnest money to the defendant on that date, and that a further sum of Rs. 3000 was paid by the plaintiff to the defendant on 9 July 1940. After that it is said that a difference of opinion occurred between the parties in regard to the terms of the contract and no further action was taken in pursuance of it. The defendant sent a notice to the plaintiff on 25 November 1940, in which he said that the plaintiff had promised to execute a deed of agreement according to the terms settled within a week. He had not done so and the defendant had been suffering great loss. He gave a notice to the plaintiff to execute the agreement within a week of the receipt of the notice, intimating that otherwise the plaintiff would not be entitled to recover the sum of Rs. 4001, which he referred to as earnest money, and he (the defendant) would be entitled to sell the forest to another person.

(2.) The suit was instituted on 13 November 1941. According to the plaint, the sum of Rs. 3000 was paid by the plaintiff by way of advance on 9 July 1940, as the defendant was in need of money. The plaintiff alleged that the defendant had agreed to execute a patta or lease, the understanding being that cutting was to commence after its execution. The defendant evaded execution of the lease, and when the plaintiff sent him a notice demanding the return of his money he ignored the demand. In his written statement, the defendant appellant admitted receipt of the sums of Rs. 1001 and Rs. 3000 and stated that according to the agreement the plaintiff should have paid a further sum of Rs. 6000 by 18 July 1910, Rs. 10,000 by 30 March 1941, and Rs. 7249 by the e July, 1941. It was also agreed that the terms of the agreement should be reduced to writing and a deed of agreement executed by the plaintiff within a week. The defendant had sent the notice referred to the plaintiff because the plaintiff had himself broken the contract by not executing the agreement. The learned Civil Judge framed the following issues: (1) Did the plaintiff agree to pay the sale consideration at specified dates and did he also agree to execute an Ekrarnama or not? (2) Is or is not the plaintiff entitled to the damages or to the interest claimed? Is the amount of the damages claimed excessive? (3) Is or is not the plaintiff entitled to get back Rs. 4001 which has been paid to the defendant? (4) To what relief is the plaintiff entitled?

(3.) The Civil Judge found that the defendant had resiled from the contract in consequence of a rise in the price of timber or the probability of such a rise. He was of opinion that the plaintiff's oral evidence was more reliable than that produced by the defendant and he also thought that the documentary evidence, to a great extent, supported the plaintiff's case. Ho, accordingly, decreed the suit for the amount paid by the plaintiff, namely Rs. 4001 together with interest thereon amounting to us. Gil as claimed. Before coming to the merits of the case, we have to deal with the objection taken by the appellant in the last ground of the memorandum of appeal. This is that ho was seriously prejudiced by the rejection of his application for the appointment of a Commissioner to record his evidence. It appears that the Court originally allowed an application made by the defendant that his evidence should be recorded on commission. This was on 9 July 1942. The ground on which he wanted to have his evidence recorded was that of illness. No further steps were, however, taken at that time to have his evidence recorded. It is said, and it appears to be a fact, that there had been negotiations between the parties for a compromise, but it would also seem that those negotiations had been broken off before 9 July 1942. At all events we find that the plaintiff's evidence was recorded from 24 July 1942, that three witnesses for the defendant were examined on 28 July and that the plaintiff himself was examined on 28 July. On 30 July 1942, an application was presented on behalf of the defendant, supported by an affidavit, in which it was stated that he had gone to Benares on 25 July for examination by a Vaid. He had intended staying there for a short time only, but his condition had deteriorated and he was unable to return to Gorakhpur. He had received a telegram from his general agent on the previous day, that is 29 July informing him that he would be examined by the Commissioner on 30 July. He had replied by telegram that he could not come from Benares. It was prayed, therefore, that a commission might be issued to have his evidence taken at Benares.