Apurba Krishna Mitra vs Ram Bahadur and Others

Mohammad Noor, J.—This is an appeal by the plaintiff who has obtained a decree against the respondents in a suit based on a hand note executed by all the four defendants to the suit for a sum of Rs. 5,680 payable with interest at 12 percent per annum. The plaintiff has obtained a decree for principal and interest up to the date of the suit and thereafter interest from the date of the decree on the entire decretal amount at the rate of six per cent per annum. The lower Court has not either intentionally or by an oversight allowed any interest pendente lite on the principal sum. The plaintiff has appealed and the only question involved is whether interest pendente lite should be allowed. The appeal, has been valued at Rs. 567 being the interest at one per cent. per annum on the principal sum of Rs. 5,680 for the period of the pendency of the suit. In the plaint as it stands the plaintiff appears to have asked for interest pendente lite at the rate of six per cent. per annum. There is however an application filed in this Court on his behalf stating that there has occurred an accidental mistake in the plaint the typist omitting to copy one full line of the draft, and there is a prayer for the amendment of the plaint. The prayer portion in the draft plaint which has been filed runs thus:

That a decree for Rs. 6,848-4-6 for principal and interest up to date besides interest pendente lite at the rate of Rs. 12 per cent per annum and costs of this suit and interest at the rate of Rs. 6 per cent per annum.

In the plaint, as it was filed, the words "at the rate of Rs. 12 per cent per annum and costs of this suit and interest" do not occur and are said to have been omitted by mistake with the result that it now reads:

That a decree for Rs. 6,848-4-6 the principal and interest up to date besides interest pendente lite at the rate of Rs. 6 per cent per annum.

Most likely there has been a mistake in the typing of the plaint. The plaintiff could not have asked for a lower rate of interest himself. Apart from this interest pendente lite can be granted without the plaintiff''s asking for it. Had we thought that interference is justified and the plaintiff is entitled to interest pendente lite at the stipulated rate, we would have ordered the amendment of the plaint or allowed interest at that rate without amending it. Before I come to the merits of the appeal it is necessary to mention that when this case was taken up by us on the 7th instant the learned Advocate for the respondents, Mr. Rai Tribhuvan Nath Sahay, filed an affidavit to the effect that one of the respondents Parmeshwar had died on the 17th July last and contended that no substitution of his representative having been made till then the appeal had abated. He further urged that at any rate under the circumstances it would be improper to amend the plaint or modify the decree against the remaining respondents. Mr. Manohar Lal, on behalf of the appellant asked us to give him two days adjournment in order to enable him to ascertain about the death of Parmeshwar. When the case was taken up to day Mr. Manohar Lal informed us that Parmeshwar had in fact died in July last though the actual date of his death could not be ascertained. He asked us to adjourn the case further to enable the appellant to apply for setting aside the abatement of the appeal at any rate against the deceased respondent. We refused to adjourn the case for this purpose. An application for setting aside the abatement has become barred by limitation and cannot be entertained unless sufficient reason be shown u/s 5, Lim. Act. Both the parties are residents of Muzaffarpur and it is difficult to imagine that the death of Parmeshwar who was a judgment-debtor of the appellant and against whom he was vigorously prosecuting this appeal, remained unknown to him so long. Apart from this, there was plenty of time for the plaintiff between the 7th of this month till now to file an application for substitution if he cared to do so.

This being the position, the first question is whether the appeal as it stands has abated not only against the deceased respondent but as a whole. The learned Advocate for the appellant contended that as the liability of the defendants was joint and several it was open to the plaintiff to proceed against the remaining respondents alone leaving out the deceased respondent altogether. This is so, so far as a suit is concerned; but different considerations arise in appeal. There may be cases in which a suit might not have abated but an appeal will abate. Here we have got a case in which a decree for a certain sum has already been passed against all the defendants. The question now is whether an additional sum should be allowed against the defendants who are left on the record in the absence of the representatives of the deceased defendant. It was held in a similar case of Rameshwar Singh Bahadur v. Ram Charan Sahu 1932 Pat 327 that this cannot be done. In that case the plaintiff obtained a decree against a number of defendants for mesne profits. He appealed to this Court claiming a larger amount. During the pendency of the appeal some of the defendants died and their heirs were not brought on the record of the appeal in time. An objection was taken that the appeal had abated. The Court held that it had. It was held that the decree for mesne profits having been obtained against several defendants it was not open to the plaintiff to proceed in appeal against some only of the defendants leaving out others against whom the decree had become final, and therefore the appeal against the remaining respondents was incompetent. Mr. Manohar Lal however has urged that the present case is distinguishable from that case on the ground that there the decree was for mesne profits which arose out of a suit for possession of Immovable property while in the present case the decree is one on the basis of a handnote. He contends that a suit for possession of Immovable property cannot proceed in the absence of a necessary defendant while a suit based on a handnote can proceed against one or more of the several joint promisors, and that therefore the principle laid down in that case is not applicable to the present case. I am unable to accept the contention. In my opinion, the principle is what has been stated by Sir Dinshaw Mulla in his commentary on the Civil Procedure Code. Dealing with the question whether an appeal should or should not proceed in the absence of the representatives of a deceased respondent the learned commentator says as follows:

The test often adopted in such cases is whether in the event of the appeal being allowed as I against the remaining respondents there would or would not be two contradictory decrees in the same litigation with respect to the same subject-matter. It is clear that a Court should not be called upon to make two inconsistent decrees about the same property and in order to avoid conflicting decrees the Court has no alternative but to dismiss the appeal as a whole.

It is obvious in this case that if the appeal of the plaintiff is allowed there will be two inconsistent decrees on the basis of the same handnote. While against some of the defendants it will be a decree for principal and interest only up to the date of the suit and not for interest pendente lite, against the others there will be another decree for the aforesaid amount as well as for the additional sum of Rs. 567. Therefore, apart from the question of the merits of the appeal I am inclined to hold that the whole appeal has abated. Assuming however that the whole appeal has not abated the circumstances are such that we cannot reasonably exercise our discretion and give the plaintiff interest pendente lite and thereby interfere with the decree of the trial Court. The next consideration is whether the plaint should be amended at this stage. Here also, as I have said, even assuming that the appeal has not abated, this is not a case in which I would be inclined to exercise my discretion in allowing the amendment of the plaint. No sufficient explanation has been offered why this alleged mistake of the typist in copying the draft plaint was not discovered by the plaintiff till after the disposal of the case by the lower Court when, as I have said, the plaintiff cannot be accused of negligence or want of diligence as he has pursued his rights against the defendants up to this Court for a sum of Rs. 567 only. However the question is not of much importance. First of all there is a prayer for interest pendente lite at any rate at six per cent per annum and secondly, as I have said, interest pendente lite can be allowed without the plaintiff specifically asking for it. I do not think on the merits of the case the plaintiff has made out a case for our interference. The learned Subordinate Judge has not expressly refused interest pendente lite but the order portion of his judgment clearly shows that he has not allowed it. The grievance of the appellant is that the lower Court was wrong in not allowing the interest without giving any reason for this omission. Now Section 34, Civil P.C, says:

Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate as the Court deems reasonable on the aggregate sum so adjudged, from the date....

It will be seen that in money suits, when the suit has been instituted, the question of interest for the period subsequent to the institution of the suit passes from the domain of contract into that of judgment. The plaintiff cannot claim it as a matter of right that he is entitled to interest for the eight months during which the suit remained pending before the learned Subordinate Judge, Mr. Manohar La1 has drawn our attention to some observations of their Lordships of the Judicial Committee to the effect that in the absence of any reason to the contrary, interest at the contracted rate ought to be allowed during the passing of the final decree. Some of those observations relate to mortgage suits where different considerations arise. I do not think their Lordships ever intended to lay down a hard and fast rule that interest pendente lite must always be allowed in every case. Every case has to be decided on its own, merits. It is true that in this case the learned Subordinate Judge did not give any reasons for not allowing interest for the period of the pendency of the suit; but there are reasons for not interfering in this case. It seems that the learned Subordinate Judge was impressed by the financial difficulties of the defendants and allowed the payment of the decretal amounts by instalments. The major defendants allowed the suit to be decreed without raising any objection whatsoever It may be that under the circumstances of the case the learned Subordinate Judge did not think it necessary, to exercise his discretion of allowing interest pendente lite. Therefore, even if the appeal had not abated, I would not have been justified in exercising a discretionary power in modifying the decree of the learned Subordinate Judge. I would therefore dismiss the appeal with costs.

Varma, J.

I agree.