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Dawson-Miller, C.J.—This is an application for leave to appeal from a decision of a Bench of this Court dated the 22nd December last affirming the decision of the trial Court. The amount in dispute on appeal to his Majesty in Council is admittedly over Rs. 10,000. The only question which remains is whether there is a substantial question of law for determination by His Majesty in Council. The main question in the case was whether there was an agreement to pay compound interest. Both Courts have found that there WFS no such agreement but the plaintiffs rely upon a settled account between the parties and they base their claim upon the last adjustment of the account which had been running on for a number of years.
The trial Court found that the defendant, had been unduly influenced by the plaintiff and was under his domination and, therefore, did not accept the account as stated.
On appeal this Court did not take that View but came to the conclusion that there were mistakes in the account itself of sufficient number and sufficient magnitude to enable the Court to re-open the account. This Court did not consider the question of mutual mistakes which in equity would be a ground for re-opening the account but based its decision upon the fact that there were in this case mistakes in the account which entitled the Court to re-open the whole matter.
It may be mentioned that the question of mistakes was not raised in the pleadings nor considered in the trial Court and no evidence was given to explain the mistakes which, the learned Judges of this Court on appeal considered were in fact mistakes and did not support the allegations made in the plaint as to compound interest with yearly rests. It seems to me that the question whether the mistakes referred to were in fact sufficient in the circumstances of this case to entitle the Court to re-open the account was a question of law and the manner in which the ease was conducted in the trial Court, that is to say, no question being raised therein as to mistakes and no opportunity being given to the parties to explain what is alleged now to be a mistake is also in itself a question of law of sufficient importance to induce us to say that there are material questions of law in this case for determination by a higher tribunal.
In my opinion the application should be allowed, and the usual certificate should be granted to the effect that the case complies with Section 110, Civil P.C. As the application has been opposed the appellants are entitled to their costs. Hearing-fee five gold mohurs.
Kulwant Sahay, J.
I agree