Lalita Prasad Chaudhuri vs Ram Narain Singh and Others

Macpherson, J.—The second appeal is preferred by defendant 1. The suit out of which it arises was for a direction to him. to execute a kawala in respect of 2� annas in village Alisberpur in favour of the plaintiffs and for recovery of Rs. 56 as the price of paddy and rabi crops for 1335 and of Rs. 49 as arrears of rent with interest thereon, in pursuance of a registered contract of 30th August 1927. For the purpose of this appeal it is sufficient to state that the allegation was that the present appellant falsely set up an arrangement whereby half an anna was purchased by one Ramcharitar Lal and offered a conveyance of two annas only. The defence of the appellant was on the lines of the alleged arrangement and that he was not liable to damages as he had ceased to have any connexion and concern with Alisherpur after the contract: he did not appropriate the produce of the Alisherpur land or realise rent.

The present appellant was the only contesting defendant.

The learned Subordinate Judge decreed the suit in respect of the kewala for 2� annas and disallowed the prayer for damages. As regards the latter he pointed out that there was absolutely no evidence to show that the appellant realised the said cash and produce rent and it was not said that any portion of the rent was time-barred on the date of the judgment, which was 22nd August 1929, and so the plaintiffs could not recover any damages. He added: "The learned pleader for the plaintiffs does not press for the damages claimed."

The appeal by the present appellant was dismissed by the learned District Judge who allowed a cross-appeal by the plaintiffs in respect of the sums of Rs. 56 and Rs. 49, which the trial Court had disallowed. The present second appeal is in respect of the damages allowed in cross-appeal and costs. So far as the damages are concerned, reliance is placed on the Privy Council decision in Venkata Narasimha Naidu v. Bhashyakarlu Naidu (1902) 25 Mad 367 in which it was said:

It was one of the grounds of appeal to the High Court that the vakils exceeded their authority in giving up this issue, but the High Court held that a vakil''s general powers in the Conduct of a suit include the abandonment of an issue which, in his discretion, he thinks it inadvisable to press; and in this opinion their Lordships concur.

The learned advocate for the respondents does not appear to me to be able to meet this contention. The learned District Judge doss not deal with it. He contended himself with holding that the plaintiff''s were clearly entitled to receive Rs. 56 by reason of having been kept out of possession of their share and Rs. 49 by reason of having been prevented from taking earlier steps in the ordinary course so that the bulk of it was already irrecoverable and the rest practically barred under the law of limitation. But in my opinion the question did not in, view of the decision of the Judicial Committee which has been cited, really arise. The appeal must be allowed to this extent.

The point taken in respect of costs is that they should have been allowed not on Rs. 3,750, the sale value of 2� annas but on one fifth of that sum (Rs. 750), the value of half an anna. It is argued that the appellant was always willing to execute a kewala for the two annas share and accordingly the value of the subject-matter in suit was only Rs. 750. But this contention is not sound. It was upon the appellant to execute a kewala of 2� annas and he refused to do so The plaintiffs when they brought their suit had to give it the valuation of 2� annas and pay court-fee upon that valuation. There was never any contention in the first Court that the suit had been overvalued.

The learned advocate was indeed taken aback when this Court discovered that the first appeal was valued at Rs. 750 and the costs have been assessed upon it and yet no plea was taken in the lower appellate Court even in the grounds of appeal that the costs in the trial Court had been entered up at an excessive rate. In my opinion the suit was not overvalued and the first Court rightly gave costs on the value of the whole share of 2� annas in respect of which the kewala was not executed.

In the peculiar circumstances, it was a matter of principle that the kewala should be for 2� annas--the Babhan Syndicate did not wish to have a Kayasth co-sharer thrust upon them by the appellant. Apart from that, there is no ground of appeal as to the costs in first appeal and, as has been shown, there could not be as they are in fact assessed on Rs. 750. The appeal is thus decreed in part. Parties will bear their own costs in this Court.