MUHAMMAD ZAFAR Vs. ZAHUR HUSAIN

JUDGEMENT

(1.) This is a curious case although, we are afraid, it is also a typical case. It is however by no means an easy case to dispose of. The plaintiff sues upon a mortgage-bond in common form, and claims payment of the amount due, or sale of the hypothecated property. The bond is said to be lost. This loss has not been established to the satisfaction of either Court. We are not surprised. Without finding any facts we can only say that the allegation of the plaintiff, that it dropped out of his hand, or pocket, or folds of his dhoti, on his way to the Court to file a suit on it, though not impossible, is an extremely unlikely event. We will not discuss the probabilities of the plaintiff discovering this unfortunate accident by the use of his senses, and taking immediate steps to recover the document, or the suspicious conduct of the plaintiff in going straight off to the police station and making a formal report. If there had been a crowd of people through which he was pushing his way, or a high wind which immediately carried the bond out of his sight and beyond recovery, we could have understood this extraordinary event. We can only say that we regard the whole story with the gravest possible suspicion. The Munsif escaped the necessity of arriving at a decision on this point by relying upon an authority with which we will deal in a moment. The Subordinate Judge, while properly agreeing with the Munsif, because he was really bound by the decision, which was a decision of a Judge of this Court, could not resist expressing his view about the evidence, and the case, therefore, reaches us with a finding of fact that the loss is not established by satisfactory evidence.

(2.) The case relied upon is Mulhu V/s. Deo Karan (1913) 11 ALJ 734, a decision of Mr. Justice Rafique, that although the execution of the bond was not expressly admitted, the plea of payment amounted to an admission of the execution of the bond, and that the plaintiff could maintain a suit on the copy of the deed without proving the alleged loss. With all respect to the learned Judge who decided that case, and who was a most experienced Judge in matters which may be described as questions of business, it appears to us that he was misled. In the first place it is not true to say that an inconsistent plea turns a preliminary plea in the same written statement into an admission when it is not in fact an actual admission. This matter will be found fully discussed in a chapter by Dr. Weir in a recent book published on the Principles of Pleadings. Alternative pleas have always been admitted from the earliest days for excellent reasons. A libel suit is perhaps the best, illustration. A defendant is perfectly entitled to deny publication and to deny that the libel refers to the plaintiff, even although he pleads alternatively that the libel is true. The reason for that is a perfectly sound one justified by the view of lawyers from all time. It has the effect of forcing the plaintiff into the box, and also the man to whom the libel or slander was published, and, therefore, the defendant by his pleadings puts the plaintiff to proof, so that he is able to assure himself that the plaintiff cannot keep out of the witness-box and will be compelled to submit to cross-examination on a question of justification.

(3.) Similarly, in a case like this, a defendant may well deny the existence of the bond, or its execution, consistently with an alternative plea that it is paid, if he instructs his pleader that the actual production of the original document will show by the endorsements upon it that the payments have been made. In other words he forces the plaintiff to prove the document. It appears to us that the learned Judge was misled by the view taken in the case of Chuni Kuar V/s. Udai Ram (1884) 6 All 73 which, unless it was a ruling upon a specific finding of fact, appears to us to be worthy of further consideration, and further the learned Judge distinguishes the case which he was deciding from the case of Sri Ram V/s. Ram Lal (1918) 11 ALJ 255 upon a fine distinction namely that the defendants in that case were not the original executants but were transferees, a ground which appears to us to be no real distinction. In the case of Sri Ram V/s. Ram Lal (1918) 11 ALJ 255 it was held that the alternative plea of payment did not amount to an admission of the mortgage sufficient to relieve the plaintiff from proving the loss of the original deed, and to entitle him to sue upon a copy of it. We agree with that decision. We respectfully think that Mr. Justice Rafique should have followed it. At any rate the principle there laid down is clearly right and ought to be followed,