Case: Srinivas Ram Kumar Vs. Mahabir Prasad And Others

To quote the words of Lord Thankerton in Bibhabati v. Rammendra Narayan,51 C. W. N. 98 : (A. I. R. (34) 1947 P. C.19) "it is not by any means a cast iron practice"; there may occur cases of unusual nature which might constrain us in interfere with the concurrent findings of fact in avoid miscarriage of justice. The case before us, however, has nothing unusual in it and involves a pure question of fact. There is no document in writing in proof of the agreements upon which the pltfs case is based and the decision hinges primarily upon appreciation of the oral evidence that has been adduced by the parties. The trial Judge, who had the witnesses before him, was the best person to weigh and appraise their credibility and the conclusion, which he arrived at, have been affirmed in their entirety by the H. C. on appeal. In these circumstances, we see no reason whatsoever to go beyond the facts which have been found against the applt. by both the Cts. below.9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right and that the H. C. took an undoubtedly rigid and technical view in reversing this part of the decree at the Subordinate Judge. It is true that it was no part of the pltfs case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursusance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A pltf. may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleading and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the defts own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances when no injustice can possibly result to the deft., it may not be proper to drive the pltf, to file a separate suit.As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee inMohan Manucha v. Manzoor Ahmad,70 I. A. 1 : (A. I. R. (30) 1943 P. C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P. C. But the P. C. held that it was open in such circumstances to the pltf to repudiate the transaction altogether and claim a relief outside it in the form of restitution under S. 65, Contract Art. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the resp. could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the applt. even though the appeal was heardex partein the absence of the resp.10. Mr. Harish Chandra, appearing for the second party defts., raised the question of interest in connection with the pltfs. claim for a money decree. His contention is that the pltf. could not claim any interest so long as he was in possession of the house and he could not also claim any interest after that, as his clients made a tender of the sum of Rs. 30,000 by sending a hundi for that amount to the pltf. by registered post on 12-7-1943 which the pltf. refused to accept. The first part of the contention is undoubtedly correct and is not disputed on behalf of the pltf. We feel difficulty, however, in accepting the second part of the contention raised by Mr. Harish Chandra. The receipt of this hundi was totally denied by the pltf. both in the plaint as well as in the evidence and it is doubtful whether even if the story was true, it could constitute a valid tender in law. The defts. undoubtedly had the use of this money all this time and in our opinion the pltf. is entitled to some interest. The learned counsel appearing for both the parties, at the close of their arguments, left this question of interest to be determined by us and we think that it would be quite fair if we allow interest on the sum of Rs. 30,000 at the rate of 4% per annum from the beginning of September 1943. It is admitted that the pltfs possession of the house ceased by the end of August 1943.1

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]8. The first contention put forward by the learned counsel appears to us to be plainly unsustainable. When the Cls. below have given concurrent findings on pure questions of fact, this Ct. would not ordinarily interfere with these findings and review the evidence for the third time unless there are exceptional circumstances justifying departure from this normal practice. The position may undoubtedly be different if the inference is one of law from facts admitted and proved or where the finding ,of fact is materially affected by violation of any rule of law or procedure. The practice adopted by this Ct. is similar to what has always been acted upon by the Judicialcase before us, however, has nothing unusual in it and involves a pure question of fact. There is no document in writing in proof of the agreements upon which the pltfs case is based and the decision hinges primarily upon appreciation of the oral evidence that has been adduced by the parties. The trial Judge, who had the witnesses before him, was the best person to weigh and appraise their credibility and the conclusion, which he arrived at, have been affirmed in their entirety by the H. C. on appeal. In these circumstances, we see no reason whatsoever to go beyond the facts which have been found against the applt. by both the Cts. below.9. As regards the other point, however, we are of the opinion that the decision of the trial Ct. was right and that the H. C. took an undoubtedly rigid and technical view in reversing this part of the decree at the Subordinate Judge. It is true that it was no part of the pltfs case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the defts. second party. But it was certainly open to the pltf. to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursusance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A pltf. may rely upon different rights alternatively and there is nothing in the Civil P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Ct. to give him relief on that basis. The rule undoubtedly is that the Ct. cannot grant relief to the pltf. on a case for which there was no foundation in the pleading and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the pltf. could have made, was not only admitted by the deft. in his written statement but was expressly put forward as an answer to the claim which the pltf. made in the suit, there would be nothing improper in giving the pltf. a decree upon the case which the deft. himself makes. A demand of the pltf. based on the defts own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the deft. in his pleadings. In such circumstances when no injustice can possibly result to the deft., it may not be proper to drive the pltf, to file a separate suit.As an illustration of this principle, reference may be made to the pronouncement of the Judicial Committee inMohan Manucha v. Manzoor Ahmad,70 I. A. 1 : (A. I. R. (30) 1943 P. C. 29). This appeal arose out of a suit commenced by the pltf applt. to enforce a mtge. security. The plea of the deft. was that the mtge. was void. This plea was given effect to by both the lower Ct. as well as by the P. C. But the P. C. held that it was open in such circumstances to the pltf to repudiate the transaction altogether and claim a relief outside it in the form of restitution under S. 65, Contract Art. Although no such alternative claim was made in the plaint, the P. C. allowed it to be advanced and gave a decree on the ground that the resp. could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the applt. even though the appeal was heardex partein the absence of thereceipt of this hundi was totally denied by the pltf. both in the plaint as well as in the evidence and it is doubtful whether even if the story was true, it could constitute a valid tender in law. The defts. undoubtedly had the use of this money all this time and in our opinion the pltf. is entitled to some interest. The learned counsel appearing for both the parties, at the close of their arguments, left this question of interest to be determined by us and we think that it would be quite fair if we allow interest on the sum of Rs. 30,000 at the rate of 4% per annum from the beginning of SeptemberIt is admitted that the pltfs possession of the house ceased by the end of August 1943.