TOTA RAM Vs. KUNWAR ZALIM SINGH

JUDGEMENT

(1.) The suit which has given rise to these appeals by the defendant was one for accounts by a principal against his agent and for the recovery of the amount found due on the accounts being rendered. The preliminary decree was passed on 19th January 1933 and the appellant was ordered to render accounts to the plaintiff- respondent from 11 September 1915 to 14 August 1930. A commissioner was appointed and, after going through the accounts and hearing the parties at length, he reported to the Court that a certain sum of money was recoverable by the plaintiff from the defendant. He further expressed the view that the defendant was liable to pay interest at the rate of 12 per cent. per annum. Both parties took objections to this report. The learned Civil Judge has accepted some of the objections of the plaintiff and has rejected all the objections of the defendant except in certain minor matters. The result has been that the decree passed by the learned Civil Judge is for an amount larger than the amount found by the commissioner. The defendant has filed two appeals, F.A. No. 455 of 1933 being against the preliminary decree and F.A. No. 530 of 1933 being against the final decree.

(2.) Learned counsel appearing for the defendant-appellant has confined himself to the appeal against the final decree and has raised four points, three being with regard to specific items allowed by the Court below against the recommendation of the commissioner and the fourth being with regard to the interest allowed. The first item challenged by learned Counsel is an item described in the commissioner's report, as well as in the judgment of the Court below, as item 18 "about miscellaneous deposit of tenants, Rs. 2265-8-0." The commissioner had reported against the plaintiff's claim under this head, but the Court below accepting the objection of the plaintiff, has allowed a portion of this amount, namely Rs. 2056-8- 0. The claim was based on a document described as Ex. 274. The appellant has not had this paper translated and printed, but the contents of this document are to be found in the commissioner's report at page 45 of the paper book. We have also examined the original. When the defendant was confronted with this document he made this statement: "I do not know whether Ex.... 274... is in my handwriting." The writing on the face of it appears to be that of the defendant and it was for the defendant to explain this document and the entries to be found in it. Instead of offering any explanation, the defendant chose to take shelter behind the evasive reply that he did not know whether the document was in his handwriting. In our opinion, the Court below was right in inferring that the document was in the defendant's handwriting and in holding that it was for the defendant to explain it. There being no explanation forthcoming on behalf of the defendant, the decision of the Court below on this point is clearly right.

(3.) The next item questioned is what is described as item 8 in the commissioner's report as well as in the judgment of the Court below. The item is one of Rupees 3385-14-0 and is said to consist of certain sums which were payable by the defendant to the plaintiff on account of certain transactions of leases and sub- leases. Learned counsel has questioned two of the sub-items which go to make up the total of Rupees 3385-14-0. The first one that he has questioned is in connexion with a tenant called Tika Motia and amounts to Rs. 397-8-0. The commissioner had reduced the claim under this head to Rs. 277-8-0 on the ground that the defendant was dismissed in 1337-F and the rent of Rabi 1337 must therefore be deducted "because it may or may not have been realized." The Court below has pointed out that the commissioner was wrong in thinking that the defendant was dismissed in 1337. It is common ground that the dismissal took place on 14 August 1930. The fasli year 1337 came to an end on 30 June 1930. The position thus was that either the defendant had realized the rent as it fell due and became payable during the currency of the agricultural year, or by his neglect allowed it to fall into arrear. As soon as the fasli year 1338 began on 1 July 1930, the rent of Rabi 1337 became an arrear. In either case the defendant was liable to pay the amount to the plaintiff. The decision of the Court below is thus clearly right. The second sub-item with regard to which the learned Counsel for the appellant has addressed us is the one which is dealt with by the commissioner under the heading "No. 3 Beda C. Rs. 876-2-3" (p. 35 of our paper book). The point raised by learned Counsel is that the commissioner as well as the learned Civil Judge have erred in not deducting the occupancy rent from what has been described as sub-tenancy rent. But the commissioner has pointed out that "the occupancy rent of this khata has been regularly credited up to the end of the lease," and the learned Judge has agreed "with that finding of the commissioner. We see no reason to differ from the finding of the Court below on this point.