HARI OJHA Vs. RAMJATAN OJHA

JUDGEMENT

(1.) These appeals are by the defendants. The claim against them was for an account. The plaintiff was a cosharer landlord and his claim was with regard to the years 1337 to 1340. It would appear from the judgment that the Judge in the Court below, acting upon the Commissioner's report, has accepted the defendants case as regards the years 1339 and 1340, that is to say he has accepted their statement of accounts and made them liable only for the sums actually shown to be collected by them. As regards the years 1337 and 1338 the case is otherwise, the Judge having given judgment for the plaintiff for the full amount on the footing that the defendants were guilty of negligence in not collecting the rents due to the plaintiff.

(2.) It is rather difficult to find a question of law in this case, but Mr. Roy contends that the subject-matter of this suit should be limited to the mere rendering of an account, and that the plaintiff should not be entitled to recover anything other than that shown by him to have been collected by the defendants, the agents. With that contention I cannot agree. It is based on the old rule that in certain circumstances the principal was entitled to ascertain the account in equity; by that was meant to ascertain the account in the Court of Chancery which had a different method of proceeding and in certain circumstances was more fit to take an account than a Court of law. Even in England since 1872 that distinction has disappeared and it certainly has no application to India. The question that really arose was whether the plaintiff having claimed an account was entitled to recover, in the events which happened on the footing that the defendants were guilty of negligence. I am not surprised that the Judge in the Court below has come to the conclusion at which he has arrived for the reason that the defendants throughout denied their agency.

(3.) They denied their agency before the trial Court and they further denied their agency before the Commissioner, although the trial Judge came to the conclusion that they were in fact the agents of the plaintiff. It is their attitude in these matters which has led the learned Judge in the Court below to the conclusion at which he has arrived. Now the Judge rightly states that there was in fact neglect in collecting during the years 1337 and 1338, as the rents had not only not been collected but the actions for those rents were barred by limitation. It is a highly technical point to suggest that the plaintiff could not recover his dues because rents were not collected by reason of negligence of the defendants, his agents. The Judge has been satisfied that the defendants made no effort to bring rent actions, to borrow the name of the plaintiff or to take any of the ordinary precautions which an agent would do in the circumstances; and although it is not contended to be so, but even if it were I should have great difficulty in coming to the conclusion that there was no evidence of negligence against the agents.