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PETITIONER: SITARAMACHARYA (DEAD) THROUGH L.RS.

       Vs.

RESPONDENT: GURURAJACHARYA (DEAD) THROUGH L.RS.

DATE OF JUDGMENT:       06/01/1997

BENCH: K. RAMASWAMY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Leave granted.      We have heard learned counsel on both sides.      This appeal  by special  leave arises from the judgment dated September  18, 1995  made in  R.S.A. No. 679/94 by the Karnataka High  Court. The appellant’s father filed the suit for  declaration   and  rendition   of  account   from   the respondent. According  to him, he had purchased the business of the restaurant on July 2, 1951 for a consideration of Rs. 2000/- out  of his  own funds  under Ex.P-7.  Since  he  was employed as  a teacher  and  the  respondent  was  loitering jobless, he  put the  respondent in  charge of the business. However, due to mismanagement of the business on the part of respondent, the  appellant’s father  filed the suit with the above relief.  The trial  Court decreed  the suit on October 28, 1986,  but on  appeal the  Addl. District  Judge by  his judgment and  decree dated  February 28, 1994  reversed  the decree and  dismissed the  suit and  in the second appeal it was confirmed. Thus this appeal by special leave.      In the  earlier proceedings, the respondent had made an unequivocal admission in the written statement as under:      "2. In  1946 P.  Vasudevacharya had  taken a  loan from Sitaramacharya the elder brother of the opponent. Since P.V. Rusdevacharya happened  to be  the relative  of the opponent and his  elder brother,  the dealings  were continued  for a long time.      6. The  opponent was never a servant of the deceased P. Vasudevacharya. He  came down  to Bijapur  in August 1951 at the instance  of his  elder brother  just to  carry  on  the business on behalf of his said elder brother who was by that time the  sole proprietor  of  the  shop.  Since  the  elder brother could not do the business of the hotel, the opponent has been  doing it  on his behalf. He has since obtained the requisite license  from the  authorities in  his name and he has  himself  taken  the  some  premises  on  use  from  the landlord".      The respondent  had also set up the plea in the written statement that  he had  sufficient  funds  to  purchase  the property in  question. The  trial Court  had considered  his evidence. On  his own  admission  that  there  were  several

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decrees pending  execution against  him at  Udipi, the trial Court found  in unlikely that the would have necessary funds to purchase  the property in plaintiff’s name. His plea that he had borrowed from his brother-in-law was negatived on the ground  that   his  brother-in-law  was  not  examined.  The appellate Court  relying upon  the judgments  of this Court, wherein it  was held  that an  admission made  in an earlier proceeding could  be considered as conclusive, held that the respondent has  sufficiently  explained  the  admission  and that,  therefore,   his  admission   was  conditional.   The appellant Court has recorded in this behalf as under:      "But in  this case  opined that the      present defendant made admission in      Ex.P-10   under    constraint   and      compelling circumstances."      The appellate  Court  has  not  explained  any  of  the circumstances much  less compelling  one under which he came to make  such an admission. Under Section 18 of the Evidence Act the  admission made  by  the  party  would  be  relevant evidence. Section  31  provides  that  "admissions  are  not conclusive proof  of  the  matters  admitted  but  they  may operate  as   estoppel  under   the  provisions  hereinafter contained". In  view of  the admissions  referred to earlier they appear  to be  unequivocal and  the finding recorded by the appellate Court is cryptic. On the other hand, the trial Court has  gone into the evidence on issues in extension and considered the  evidence and  the appellate  Court  has  not adverted to  any of  those valid  and relevant consideration made by  the trial  Court. The  High Court has dismissed the second  appeal  holding  that  they  are  findings  of  fact recorded by the appellate Court on appreciation of evidence. We think  that the  view taken  by the  High  Court  is  not correct in  law. The  admissions in the written statement in the earlier  proceedings,  though  not  conclusive,  in  the absence of  any reasonable and acceptable explanation, it is a telling evidence heavily loaded against the respondent.      The appeal  is allowed.  The judgment of the High Court and the  appellate Court  stand set  aside and  that of  the trial Court stands confirmed. No costs.