MEAJAN MATBOR Vs. ALIMUDDIN MEA

JUDGEMENT

(1.) This is an appeal from the judgment of Mr. Justice Chapman, by which he set aside the judgment of the Officiating Additional District Judge of Dacca whereby he affirmed the judgment of the learned Munsif.

(2.) The action was brought for rent by the plaintiff, and the defence was that the rent had in fact been paid. The learned Munsif found that it had not been paid. The learned Officiating District Judge investigated the facts and came to the conclusion, as the learned Munsif did, that the rent had not in fact been paid, and he said in his judgment: "The learned Munsif has disbelieved the witnesses to payment for cogent reasons and they have not been met." Then after making a few other observations he goes on to say: The determining factor in the case is the evidence of the plaintiff s Pleader. He deposes that defendant No. 2 came to him before the suit and asked him to make a settlement," and on reference to the evidence it appears that the interview to which the learned District Judge was referring was about a month before the suit was instituted. The form of settlement was suggested, viz., diminution of interest. On the day the suit was filed defendant No. 2 again came with a relation and asked the Pleader not to file the deficit Court-fee stamps but to make a compromise." Now the learned Judge who has allowed the appeal from the District Judge came to the conclusion that this evidence of the plaintiff s Pleader ought not to have been admitted; and the learned Vakil for the defendants has supported his judgment upon this ground. He says that reference must be made to Section 23 of the Indian Evidence Act, which runs in this way: In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the Court can infer that the parties agreed together that evidence of it should not be given." Now, it is admitted by the learned Vakil for the defendants that this case does not come within the first branch of that section, or, in other words, he agrees that there was no express condition that the evidence of this conversation or interview should not be given. But he says that it does come within the second branch of it, because he argues that there were circumstances from which the Court could infer that the parties agreed together that the evidence of it should not be given. The learned Judge, Mr. Justice Chapman, has taken that view, and he says "that evidence was to the effect that one of the defendants had approached him at the time when the suit was filed and subsequently for the purpose of compromise." It is to be pointed out, first of all, that the learned Judge has somewhat misunderstood the evidence in the case, because the first interview between the defendant No. 2 and the plaintiff s Pleader was at least a month before the suit was instituted, and was not at the time when the suit was filed as the learned Judge says it was. We have to seek whether there are any circumstances in this case from which we can infer that there was an understanding between the plaintiff s Pleader and the defendant No. 2 that the conversation which they had about the settlement of this suit should not be given in evidence against the defendants. I did not see those circumstances, and I asked the learned Vakil yesterday what they were and so far as I can make out from his argument, they were that inasmuch as there was a suit about to be instituted, and inasmuch as this conversation was about a compromise of the claim, it must be inferred that it was intended by the parties that that conversation should be a privileged conversation or should be a conversation without prejudice. I do not think that the mere fact that it was contemplated between the parties that the suit was about to be instituted prevents the conversation as regards a settlement of the claim from being given in evidence.

(3.) My opinion is supported by the case to which my attention was drawn by my learned brother Mr. Justice Mookerjee and which was decided so long ago as 1830 by Chief Justice Lord Tenterden, in Wallace v. Small M. & M. 446. There the action was upon an assumpsit on a charter party. There was some difficulty in fixing the defendants with the contract. It appeared, however, that after the action was brought-I draw attention to that because the conversation in the present case was at least a month before the action was brought, while in that case [Wallace v. Small M. & M. 446] it was after the action had been brought-an offer of a specific sum had been made and evidence was given on the part of the plaintiffs that a friend of theirs in consequence went to the defendants and advised them to increase their offer, and that the defendants refused to do so saying "we shall lose enough by the charter party as it is". The witness stated that nothing was said about this communication being without prejudice. The Attorney-General for the defendants argued that the evidence was inadmissible and he said that "from the very nature of the transaction it appears to have been a negotiation for a compromise", the very argument which the learned Vakil put forward in this case "and if so, it must be understood to be without prejudice, although nothing is said on that subject at the time, nor does it, even if admitted, amount to any proof of liability." There the learned Chief Justice said that the evidence ought to be admitted; and he also said he thought it good prima facie evidence of liability. He said it is not said to be without prejudice, and an offer to compromise may be very well made, without any restriction as to confidence." That is entirely in accordance with my judgment, and not only that, but within my experience.