BALKRISHNA Vs. SADASHEO

JUDGEMENT

(1.) I think the final decree which directs the plaintiff to pay to the defendants a certain amount of money on account of the value of moveable property set forth in the defendants' lists must be set aside and the case must go back to the lower Court for a fresh adjudication of the extent and value of such moveables after proper enquiry and consideration of evidence to be adduced in the case. The lower Court's procedure of accepting the defendants' lists of moveable property as correct without any evidence to support them is opposed to all principles of justice and commonsense. Plaintiff has filed his own lists and the defendants have filed theirs. If the respective lists did not tally and the defendants complained that the plaintiff's lists did not make a full disclosure of the value and extent of the moveables in his possession, and the defendants' lists sought to charge the plaintiff with possession of additional moveable property of a larger value than that admitted by the plaintiff, the ordinary course which the Court could have legally followed was to call upon the defendants to establish their assertion by giving prima facie proof in support of the correctness of the extent and details of the property as given by them. The lower Court could under no circumstances accept the defendants' lists as correct without such proof.

(2.) IN Gopala v. Ramkrishnapuri [1919] 15 N.L.R. 85, a somewhat similar procedure was followed by the District Judge who decided the case in appeal without caring to see whether the plaintiff had produced even prima facie evidence or not, or, at any rate, without considering the evidence on the subject. It was a suit by a co-sharer malguzar against the lambardar for his share of village profits. The District Judge decreed the plaintiff's claim without considering any evidence, because he thought that the burden was on the defendant lambardar and he had failed to prove what his receipts were. Batten, A.J.C., while remanding the case observed that a case of this type cannot possibly be decided without any reference to the evidence whatsoever. What is a sufficient ground of prima facie proof on the part of the plaintiff (claimant) is a question of fact in each case. The appeal was, therefore, remanded for further trial to the District Judge. It will thus be seen that a claimant cannot succeed without giving prima facie proof in support of his case whether he be a plaintiff or defendant.

(3.) IT must be borne in mind that on 30-9-24 the plaintiff and his pleader were absent, and that on 1-10-24 Mr. Deorankar appeared and agreed to bring the plaintiff before the Court on 3-10-24. The plaintiff appeared on 3-10-24 and made his statement, and expressed his willingness to partition the moveables and the Court accepted his and his counsel's assurance as the order-sheet of that date shows. The condition was thus fulfilled and the penalty attached to his default become inoperative and unenforceable. However expedient orders of coercive nature such as these may be in the circumstances of the case, they are highly irregular and cannot be called judicial orders. The proper procedure to follow under such circumstances is laid down by Order 17, Rules 2 and 3 of the Civil P.C., and the Court should have had recourse to it. Moreover, if owing to the continued absence of plaintiff and his contumacious behaviour towards the defendants and his defiant attitude and disobedience of any orders lawfully passed by the Court or for any other good cause, the Court was satisfied that the further progress of the suit was being impeded or delayed on that account it was open to any of the defendants to move the Court to transpose him as the plaintiff and to make the present plaintiff a defendant, and then take proper steps to work out the rights of the parties as declared by the decree against one another in the same suit.