SHIBRAM KAIRI Vs. MDMASADAR ALI

JUDGEMENT

(1.) The plaintiff here was one of the defendants in a suit brought by the present defendants who as plaintiffs had instituted Title Suit No. 50 of 1939 in the second Court of the Munsif of Maulvi Bazar. The parties reached a compromise in that suit and on 30 April 1940 (17th Baisakh 1347), it was agreed between the parties that if the defendant there (present plaintiff) paid Rs. 75 into Court within three months of the date which the conditional solehnama bore, the suit in which it was filed would stand dismissed and that if there was failure to pay in that amount within the time allowed, the suit would stand decreed. Under some procedure with which I am not familiar, a so-called preliminary decree was drawn up that day, and it is important to notice that in that decree, the date for application for a final decree was shown as 31 July 1940, which can only mean that the last date for payment was the 30 July 1940.

(2.) The money was admittedly not deposited by that date with the result that it was not accepted when tendered out of time, viz., on 2 August, 1940, which corresponds with the 17 sraban 1347. The outcome is the suit from which this appeal arises. The plaintiff- appellant came to Court with a case that by wilful misrepresentation, he was led by the respondents into the erroneous belief that the period of three months was to be calculated according to the Bengali calendar and on this ground ( fraud and mistake is how the Munsif states the case) the suit was brought to set aside the earlier decree. The material issue was framed thus:- Was the solehnama in Suit No. 50 of 1939 tainted by fraud and is the decree based thereon liable to be set aside? This was also the trend of the evidence led by the appellant who went so far as to try to establish that the respondents, knowing that calculation by the English date would alone be accepted by the Court, had as a result of certain conversation with the appellant on the evening of the date of filing the solehnama, deliberately misled the appellant into supposing that deposit was to be made within three months according to the Bengali calendar. The suit failed in the first Court: the appeal was first heard by a Subordinate Judge of Sylhet who passed an anomalous order of remand for the examination of Babu Jatindra Mohan Deb who was defendants pleader in the suit of 1939. This order was set aside by this Court which in making the rule absolute directed the Judge to take the extra evidence himself under Order 41, Rule 27 or to get it recorded and remitted to him by the trial Court. The District Judge himself recorded the evidence of this pleader and then dismissed the appeal.

(3.) On these facts it is sufficiently plain that no second appeal can succeed. The pretext for one has however been furnished by certain observations in both the Courts to the effect that had the suit been brought within the purview of Section 20, Contract Act, (that is, that both parties were under a bona fide mistake, on the material point already discussed, and that while one party imagined that the period expired on 30 July 1940 A.D. the other laboured under the mistaken impression that it expired on the 17 sraban 1347 B.S. there being no consenus ad idem on the point), the plaintiff might and indeed probably would have succeeded. All that Mr. Hemendra Das can contend therefore is that the plaintiff should be allowed to amend his plaint by turning it into a suit for setting aside the decree on the ground that the basic document, the solehnama, was one which contained a vital condition about which the parties were honestly mistaken and that the suit should be remitted to the trial Court to be re-heard on those lines.