NARSINGH DAS Vs. GOKUL PRASAD

JUDGEMENT

(1.) This was a suit originally instituted to recover the value of ornaments alleged to be worth Rs. 5,993 and to recover Rs. 6,007 which was alleged to have been taken out of Court by the defendants, on the ground that they were accountable in both these respects to the plaintiff.

(2.) The learned Subordinate Judge dismissed the suit and when this matter came up in argument in first appeal, it became so apparent that complete justice could not be done between the parties if the claim was limited in the manner in which the plaintiff by his plaint had limited it. We, therefore, sent the matter down to the lower Court to consider particularly the state of account in respect of certain zamindari property. It was alleged that a lady, Mt. Chandrowal, the mother of Narsingh Das, owned zamindari property, and that for a period of some eight years, from 1908 to 1916, that zamindari property had been managed by the defendants. The findings have been returned to us and in this Court even wider arguments have taken place on both sides, and in the result we have had, upon very scanty material, to go into the whole of the transactions between these parties to arrive at the best and fairest decision we can.

(3.) The first difficulty that we have been mot with is this: On 15 February 1922 Mt. Chandrawal was examined on commission and had on that day concluded her examination-in-chief and had been under cross-examination for a considerable period. Her cross-examination, we are told, occupied some seven pages of print. By that time 9 O clock in the evening had arrived, and not unnaturally the parties wished to separate. Mt. Chandrawal was not well at that moment. There arose a discussion as to when next her cross-examination should be continued, and whilst the pleader for Narsingh Das was willing for the lady to be examined on the next or any of 3 or 4 subsequent days, the pleader for the defendants had other engagements and the matter was left open. In that state of affairs Mt. Chandrawal died on 19 February 1922,-it is said she died of plague. The plaintiff naturally wished that evidence to be used in the lower Court and here. It was excluded in the lower Court and we have been obliged to exclude it here, being guided by the decision which is reported in Coomar Sattya Sankar Ghosal V/s. Ranee Golapmonee Debee [1900] 5 C.W.N. 230 (Notes) and on a consideration of the terms of Section 33, Evidence Act, and we have had to decide that the evidence cannot be received because the evidence was not concluded. That is to say although her examination- in-chief was concluded, it was open to the defendants to argue that a subsequent cross-examination would have destroyed to a great extent the effect of the evidence-in-chief, and therefore, one could not take an incomplete deposition of the lady and pay any attention to it. We have no doubt that argument put forward by the defendants was a good argument, and we did decide to exclude her incomplete statement, and it has not been presented to us.