NAGARDAS MATHURADAS Vs. NVVELMAHOMED

JUDGEMENT

(1.) This suit as originally framed was a suit to recover the sum of Rs. 3,841-10-0 upon the basis that the defendant employed the plaintiffs as his commission agents on pakki adat terms. Alternatively, the suit was for the price of goods sold and delivered. Counsel before us have agreed that the case has been fought out upon the footing of a suit for the price of goods sold and delivered. The defence was that the defendant had rightly rejected the goods, and there was a counter- claim for the sum of Rs. 835-12-2 for the expenses alleged to have been incurred by the defendant in respect of the goods in question. [After referring to the issues, His Lordship proceeded :]

(2.) The learned Judge hold that the defendant rejected the goods, and that subsequent to that rejection by him his marks were put on the bags which were then taken from Chamar Godi to the Alexandra Docks. The learned Judge came to the conclusion that this was an exercise of ownership by the defendant over goods which he had previously rejected, that exercise of ownership being inconsistent with the rights of the plaintiffs, and upon this footing the learned Judge awarded Rs. 1,200 for damages to the plaintiffs for conversion of goods, that sum being the amount realized on the sale of the goods pending the suit for whom it might concern, the Judge holding that the sum so realized was a fair estimate of the value of the goods.

(3.) It must, however, be observed that a claim for damages for conversion had not been raised either on the pleadings or during the trial. Counsel at the bar informed us that the first time that any question of damages for conversion was mentioned was when the judgment which had been reserved was subsequently delivered. There have been no amendments of the pleadings, no issue has been raised, and counsel on neither side have been afforded any opportunity of dealing with the case on this basis-In my opinion, before a Judge delivers a judgment, which is not covered by and is inconsistent with the pleadings before him and the issues raised, he ought to insist upon an amendment of the pleadings, and, if necessary, to direct a further issue or issues to be raised, and to afford, counsel an opportunity of dealing with the Base upon the pleadings so amended and the fresh issue or issues 30 raised. Nothing of the kind happened in this case, and with very great deference to the learned Judge, in my opinion, his judgment cannot be supported for this reason, apart from other reasons, which I will proceed to mention.