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PETITIONER: BANK OF INDIA

       Vs.

RESPONDENT: LAKSHIMANI DASS & ORS.

DATE OF JUDGMENT:       10/03/2000

BENCH: S.S.Ahmad, S.R.Babu

JUDGMENT:

     RAJENDRA BABU, J.  :

     For  purposes of convenience, we refer to the  parties as  arrayed  in the original suit out of which  this  appeal arises.   Shital  Chandra Das and Karmadhar Das filed  Title Suit No.  77/59 in the court of Subordinate Judge at Alipore against  Madhuri Choudhary, daughter-in-law of the  original lessee of a godown bearing No.  103/1B Raja Dipendra Street, Calcutta.   The  sub-tenants  Brij   Kishore  Bhagat,  Nawal Kishore  Bhagat and Durga Devi Bhagat were also impleaded in the  said suit as defendants.  The said suit was decreed  on September  30,  1963 against all the  defendants,  including Brij  Kishore  Bhagat, Nawal Kishore Bhagat and  Durga  Devi Bhagat.   The  plaintiffs in that suit levied  execution  in Case  No.  18/63 in which warrant for delivery of possession of the disputed premises was issued.  In the disputed godown there  were racks on which oil seeds were stacked.  Inasmuch as  the said oil seeds could not be immediately removed, the plaintiffs  therein  obtained delivery of possession of  the godown  along  with oil seeds stacked in several bags.   The said  oil seeds were kept in the custody of Sitaram Roy,  an officer  of  the  plaintiffs by the  process-server  of  the court.   Thereafter  the Bank of India, defendant No.  1  in the  suit, filed an application under Order XXI Rule 101  of the Civil Procedure Code (C.P.C.) claiming that the Bank was in  possession of the godown as pledgee of the goods from an alleged partnership firm, namely, M/s Bansidhar Baijnath and Brij  Kishore  Bhagat, Durga Devi Bhagat and  Nawal  Kishore Bhagat,  who are stated to be the partners of the said firm. M/s  Bansidhar Baijnath, the firm, also filed an application under  Order XXI Rules 100 and 101 C.P.C.  claiming to be in possession  of the godown on the date of the delivery of the possession.    These   applications   were   registered   as Miscellaneous  Case  No.   1/72 and Miscellaneous  Case  No. 3/72  in  the  court  of Subordinate  Judge,  Alipore.   The plaintiffs  contended that the present defendants were bound by  the decree and the claim of possession of M/s  Bansidhar Baijnath  or the Bank as pledgee were all baseless.  It  was also  contended that Bhagat group were in possession of  the godown  on the date of the delivery of the possession.   The defendants  filed  two  separate applications in  those  two miscellaneous  cases for restraining the decree holders from removing  the stacks of oil seeds from the godown.  The  ad- interim  injunction  was made absolute on the  understanding

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that the miscellaneous cases would be expeditiously disposed of  and  an  inventory  of  the oil  seeds  was  made  by  a Commissioner appointed by the court.  Miscellaneous Case No. 1/72  was  filed seeking for a direction upon the  defendant No.  1, the Bank, to remove the said oil seeds on the ground that  the  plaintiffs were suffering substantial loss  daily and  the  goods  were perishable.   The  Subordinate  Judge, Alipore, granted leave to the Bank to remove the said goods. Defendant  No.  1-Bank, however, applied for modification of the  order  dated  June 27, 1972.  A revision  petition  was filed  in  the High Court.  Before the High Court  defendant No.   1 withdrew the petition for removal of the said  goods and  the  order of the Subordinate Judge passed on June  27, 1972  was  set  aside.  In view of the indifference  by  the defendants,  the plaintiffs had suffered loss by way of rent and  by not delivering the vacant possession to the Bank  by obtaining  an  order  of injunction wrongfully  and  by  not removing  the  goods  in  spite of the offers  made  by  the plaintiffs  and having kept the goods in spite of the offers made by the plaintiffs, the defendants have become liable to pay  compensation.   A  separate  suit was  also  filed  for ascertaining  the mesne profits and in the suit out of which these  proceedings arise, the plaintiffs claimed damages for wrongfully  keeping the said alleged oil seeds from  January 15, 1972.

     Defendant  No.   1-Bank,  contested the suit.   It  is pleaded  that  M/s Bansidhar Baijnath is a partnership  firm and  a constituent of the Bank which carried on the business of  sale and purchase of oil seeds and had its godown in the premises  aforesaid.  Defendant No.  1 as pledgee had  taken possession  of  the  godown together with the  goods  laying thereon.  There were a stock of 3409 bags of Kusum oil seeds in  the  said godown pledged in favour of defendant No.   1. The  godown  was  kept locked by defendant No.  1  with  the locks  of  superior quality put upon the doors of  the  said godown  with  the  name  of the defendant  No.   1  engraved thereon  and defendant No.  1 had also affixed a name  plate and  sign board on the said godown.  On January 14, 1972  at about  4 p.m.  an employee of the Bank was informed  through telephone  that padlocks were being broken upon and  certain locks  were  being  placed  thereon.    The  agent  of   the defendant-Bank  went  to the spot to find that the  padlocks fixed  to  the  godown had been removed and  they  had  been replaced  by other locks.  The name plates of the  defendant also  had been removed.  The agent of the Bank was prevented from  entering into the godown and making inspection of  the pledged goods.  A report was also made to the police station on January 14, 1972.  It is claimed that defendant No.  1 as pledge  had absolute physical and peaceful possession of the pledged  goods in the said godown within the full  knowledge of  the plaintiffs and thereafter they filed an  application under  Order XXI Rules 100 and 101 C.P.C.  for  ascertaining of  its  legal  rights and restoration of  possession.   The defendant-Bank  also  claimed no knowledge of the decree  in the  Title  Suit  No.  77/59 nor of the proceedings  in  the Execution  Case  No.  18/63.  Order dated June 27,  1972  in Miscellaneous  Case  No.   1/72  was  made  subject  to  the condition  that  rights  of  M/s Bansidhar  Baijnath  to  be restituted  to  their original position at the cost  of  the Bank.   In  view of the said onerous condition and the  said order   was  likely  to   create  complication  leading   to multiplicity  of  proceedings, an application was filed  for reconsideration of the said order and on a revision petition being  filed  against the said order the same was set  aside

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and  it  is  claimed  that revision petition  had  not  been withdrawn  by  the defendant and they had not  obtained  any order  of  injunction  wrongfully or illegally  and  so  the plaintiffs were not entitled to any damages or compensation. The  other  defendants  admitted  that  the  plaintiffs  had obtained  khas possession of the godown and the goods  along with  oil seeds which were kept by the bailiff of the  court in  the  custody  of  the Sitaram Roy,  an  officer  of  the plaintiffs.   Those  oil  seeds  belonged to  the  firm  M/s Bansidhar  Baijnath and the defendants Nos.  1 to 4 did  not conduct  business  and, therefore, they were not  liable  to remove  the goods which did not belong to them and the  Bank is  the pledgee of those goods.  The defendants did not  act for  those  persons  and  they did not  interfere  with  the execution of the decree at all.  The order of injunction was not  obtained illegally.  The defendants never prevented the plaintiffs  from utilising the godowns and, therefore,  they were  not liable to pay compensation or damages at all.  The plaintiffs  having  retained  the  goods  in  their  custody through  their officer cannot claim or charge against  these defendants  any damage.  The defendants are, therefore, not, in   any  way,  liable  for   damages  and  the  claim   for compensation  made  is  also highly inflated  and  the  suit deserves to fail.

     On  these pleadings 12 issues were raised by the trial court.   The trial court came to the conclusion the suit was not  bad for mis-joinder and non-joinder of parties and  the suit  was within period of limitation and the plaintiffs had obtained  delivery of the disputed godown through court  and there  was  overwhelming  material to that effect.   On  the question  as  to who was in possession of the goods and  oil seeds  in  godown  kept by the bailiff of the court  in  the custody  of  Sitaram  Roy   after  obtaining  the  aforesaid delivery  of possession of the godown by the plaintiffs, the trial court answered the same in favour of the plaintiffs to the  effect  that there can be no dispute on the point  that goods  and  the  oil seeds in the godown were  kept  by  the bailiff  of the court in custody of Sitaram Roy, an  officer of  the plaintiffs, at the time of delivery of possession of the  godown.   On  the  question  whether  these  oil  seeds belonged  to M/s Bansidhar Baijnath and the partners of  the firm, it is held that the goods had been hypothecated to the Bank  by M/s Bansidhar Baijnath which is a partnership  firm consisting  of partners Brij Kishore Bhagat and Smt.   Durga Devi  Bhagat and the goods belonged to the Bank of India  as holder  of security and pledged through the ownership  which remained  with  the partnership firm.  The Bank of India  as pledgee  cannot have any claim on the pledged articles  more than  money advanced by it.  Therefore, the trial court came to  the conclusion that the pledged articles belonged to the partnership  firm  M/s  Bansidhar Baijnath and the  Bank  of India  is a mere pledgee of those articles.  On the question whether  the  defendants  interfered  with  the  plaintiffs’ possession of the disputed godown, the conclusion reached by the  trial court is that the goods were continued to be kept inside  the  godown  and   though  the  plaintiffs  obtained possession  in  the execution proceedings and the goods  had been  given to the custody Sitaram Roy and, therefore, by no stretch  of imagination it can be said that at any point  of time  defendants  interfered  with  the  possession  of  the plaintiffs  of  the disputed godown.  The application  filed for   injunction   for  removing   the  goods,  etc.    were precautionary  measures taken by the defendants so that  the goods were not wasted or damaged and when the injunction was

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subsequently  vacated,  they let out the godown to  somebody else.  Thus the possession of the plaintiffs in the disputed godown  was  never interfered with by the  defendants.   The trial  court  on these findings came to the conclusion  that the  suit filed by the plaintiffs could not be maintained at all and it also noticed that the plaintiffs consented to the order  of  injunction  being made  absolute  preventing  the defendants  from removing the goods from their godown, it is not  open  to  the plaintiffs to claim damage  for  use  and occupation of the godown by the defendants.  Compensation in the  form  of damage can be allowed if it appears  that  the injunction  was made on insufficient ground and,  therefore, the  plaintiffs  are  not  entitled to  any  damage  as  the defendants  obtained an injunction order against them in the miscellaneous cases.  Compensation in the form of damage can also  be allowed if the suit fails on the ground that  there was  no  reasonable  and probable cause for  it.   From  the Judgment  Exhibit 10, it cannot be stated that the said suit had  been  filed without any reasonable and probable  cause. On that basis the suit was dismissed with costs.

     The  matter was carried in appeal to the Court of  the Additional  District Judge, Alipore.  The learned Additional District  Judge  found  that there was no dispute  that  the plaintiffs  were  the owners of the godown in  question  and they  obtained  a  decree for khas possession  of  the  same against  defendants  Nos.   2 to 4 and  others  pursuant  to decree  in  Title  Suit No.  77/79 and  Execution  Case  No. 18/63  filed  thereof the plaintiffs obtained possession  of the  godown  through  court  on January  14,  1972  and  the problems  started  because of stocking of a large number  of bags  containing oil seeds in the said godown and those  oil seeds   actually  belonged  to   the  partnership  firm  M/s Bansidhar  Baijnath which was a sub-lessee of the said firm. The  plaintiffs had impleaded the partners of the said  firm in  the said suit and those partners are defendants Nos.   2 to  4 in the present suit and they were bound by the  decree passed in Title Suit No.  77/59.  Their contention that they were not the partners of the said firm had been rejected and they had not come forward to challenge that finding.  Though the plaintiffs took khas possession of the godown there were oil  seeds  in  the  godown  at  the  time  of  delivery  of possession,  the  plaintiffs were hardly given any time  for the  purpose of disposal of the oil seeds because on January 15,  1972,  the  very  next day after the  delivery  of  the possession M/s Bansidhar Baijnath filed an application under Order  XXI Rule 100 C.P.C.  for adjudication of their  claim to  the oil seeds and on the very same day they obtained  an injunction  restraining the plaintiffs from removing the oil seeds  from  the  godown  in   question  and  that   interim injunction  was  made absolute and thus the plaintiffs  were prevented  from  disposing of the oil seeds.  Thereafter,  a lot  of litigation started.  In such contest the plaintiffs’ claim  for  damages on account of use or occupation  of  the godown  by  the  defendants  could  not  be  resisted.   The plaintiffs  could not let out the godown to others and  this was  on  account  of acts of defendants Nos.  1  to  4  and, therefore,  they  cannot  disown  their  liability  for  the damages  sustained  by  the  plaintiffs on  account  of  the storage  of  oil seeds belonging to defendants Nos.  2 to  4 who  pledged the same with the defendant No.  1 as  security of  loans.   The  learned  Judge  took  the  view  that  the plaintiffs  could  claim  damages from the Bank as  well  as other  defendants for making good the loss sustained by  the plaintiffs  on  account  of occupation of  their  respective

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extent  of liability.  He, therefore, set aside the judgment and  decreed  the  suit and further made it clear  that  the assessment  of damages had not been made for the purpose and for that purpose the matter was remanded.

     The  matter  was carried in the second appeal  in  the High  Court.   In the High Court the view taken is  that  no independent  title has been found in favour of M/s Bansidhar Baijnath and/or its partners, that is, defendants Nos.  2 to 4,  in  respect of the said godown by the courts  below  and apart from Section 95 C.P.C.  the plaintiffs are entitled to bring an action for recovery of damages for wrongful use and occupation  of  the godown by the defendants Nos.  1  to  4. The High Court is of the view that defendant No.  1, Bank of India, was only a pledgee of the goods, namely the oil seeds stored  in  the godown in question and the same belonged  to the  firm  M/s Bansidhar Baijnath of which  firm  defendants Nos.   2 to 4 are partners being pledgee of the said  goods. The defendant- Bank possessed the said goods and as such was in  actual physical possession of the godown at the time  of execution  of  the decree passed in Title Suit  No.   77/59. Excepting  a  claim  on  the oil seeds  as  a  pledgee,  the defendant-Bank  had  no other right in respect of  the  said godown  and  the  Bank  had also not claimed  any  right  of tenancy  or license in respect of the said godown.  The firm M/s  Bansidhar  Baijnath  and/or   its  partners  could  not establish  any  right, title or interest in the said  godown and  as such the defendants had no right to possess the said godown  either  actually or constructively by keeping  their goods  therein.  In the Title Suit No.  77/59 M/s Bhagat Oil Mills  was impleaded as defendant No.  3 being sub-lessee of the  disputed  premises and Baijnath Bhagat appeared in  the said  suit as Proprietor of M/s Bhagat Oil Mills and  during the  pendency of the said suit, Baijnath Bhagat having died, the  defendants  Nos.  3 and 4 were substituted in place  of the  said  Baijnath  Bhagat.   The decree  for  recovery  of possession of the disputed premises was passed in that suit. In  those circumstances, defendants Nos.  2 to 4 were  bound by  the  decree  of the execution of which the  recovery  of possession  was  delivered to the plaintiffs-respondents  by the bailiff of the court.  Defendants Nos.  2 to 4 could not claim  any right independent of Banshidhar Baijnath and even apart from Section 95 C.P.C.  the plaintiffs are entitled to bring an action for recovery of damages for wrongful use and occupation  of the godown in question by defendants Nos.   1 to  4.   Section 95 C.P.C.  is a specific provision to  meet the  situation  stated therein and it is open to a party  to institute  an independent suit for damages for unlawful  use and  occupation  of an immovable property if  the  concerned party   can  establish  such   unlawful  action  of  another resulting  loss  and damages.  The scope and ambit  of  such suit  for  damages  are necessarily wider than  the  limited scope  envisaged  by  Section 95(1) C.P.C.  In  the  instant case,  defendants  Nos.  2 to 4 were owners of the said  oil seeds  and  defendant-Bank was only a pledgee of  the  same. The  decree  holder plaintiffs had no claim whatsoever  over the said oil seeds nor did they make any claim at any stage. It  is  defendants who made an application under  Order  XXI Rules  100  and 101 C.P.C.  restraining the plaintiffs  from removing  the oil seeds and sought for permission of  access to  the  said  oil seeds under the custody of  Sitaram  Roy, which   was   also  granted  by   the   court.    In   those circumstances,  it is a quite apparent that by virtue of the said   interim  orders  obtained  by  the  defendants,   the plaintiffs  and  Sitaram Roy could not remove the  said  oil

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seeds  from the said godown and the interim orders were made absolute  in the presence of the parties and it was appeared to  have  been  passed  with the  consent  of  the  parties. Defendants  Nos.   1 to 4 were not restricted to remove  the oil seeds in respect of which no claim had ever been made by the plaintiffs at no point of time.  Defendants were not the custodian  of the goods.  The goods were kept in the custody of Sitaram Roy, an employee of the plaintiffs.  In the facts of  the  case, therefore, the High Court took the view  that the   plaintiffs  obtained  possession  of  the  godown   in execution  of the decree not in a vacant condition but  with the  oil  seeds  stored  therein and the  bailiff  made  the employee  of the plaintiffs decree-holders, custodian of the said  goods.   By restraining the plaintiffs  decree-holders and  the  said custodian from removing the oil seeds and  by not  removing  the  oil seeds on their own,  the  defendants became  liable  to damages.  On that account the  plaintiffs have not been able to utilise the said godown effectively in a  gainful  manner and, therefore, the plaintiffs’ case  for damages  on account of storage of the oil seeds in the  said godown  against  the  defendants   can  be  decided  without considering  the  case  of  malice   of  the  defendants  in obtaining the said orders of injunction.  Hence the question of specific pleading of malice by evidence by the plaintiffs is not germane for disposing of the suit for damages claimed by  the plaintiffs if the plaintiffs can establish that  the defendants  had  no lawful right to use and occupy the  said godown  and store the oil seeds therein and for such storage of  the  oil seeds, the plaintiffs have  suffered  pecuniary loss  and  damages.  After distinguishing the  decisions  in Bhupendra  Nath Chatterjee & Ors.  Vs.  Sm.  Trinayani Devi, AIR  1944  Calcutta  289,  and Albert  Bonnan  v.   Imperial Tobacoo  Co.  of India Ltd., AIR 1929 Privy Council 222, the High  Court agreed with the view expressed by the  Karnataka High  Court  in  Basamma  & Ors.   V.   Peerappa,  AIR  1982 Karnataka  9.   On  that basis the appeals  were  dismissed. Hence  these appeals - one by the Bank and the other by  the original  lessee  of  the  sub-tenant  of  the  premises  in question who were defendants in the original suit.

     Two contentions are put forth before us;  firstly that Section  95  CPC is a complete code and no suit outside  the said  provision could be filed for claiming compensation  or damages  arising  out of an order for  temporary  injunction obtained  on insufficient grounds.  The second ground  urged is  that if the claim of the plaintiff in the suit is  based on  a  cause  of action for trespass that  inasmuch  as  the defendants  were  clothed  with a decree of  the  court  the plaintiff  had to plead and prove malice and unless the same is  established  he  could  not   get  any  relief.   It  is elaborated  that  there  cannot be a  suit  simplicitor  for damages  based  on trespass because of an order made by  the court when the defendants had obtained an order of the court it must be presumed that the court is not an agent acting on their  behalf and, therefore, the plaintiff had to establish that  such  an order was not only obtained  on  insufficient grounds but with malice.

     Section  95  CPC provides for a summary remedy to  get compensation  where a temporary injunction has been  granted if  such injunction was applied for on insufficient  grounds or  there  were  no  reasonable   or  probable  grounds  for instituting the claim for injunction.  The defendant in such a  proceeding  is simply to present a petition to the  court and the court subject to its pecuniary jurisdiction can give

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compensation  upto Rs.1,000/-.  The remedy under the Code is optional  and  an  injured  party can file  a  regular  suit against  the applicant for injunction for compensation if he has not already sought relief under the aforesaid provision. Thus  this  section  is an alternative remedy  in  cases  of wrongful  obtainment of an injunction and it does not in any way  interfere  with  the principles  regulating  suits  for damages for tort of malicious legal process.  There has been a  series  of decisions which have explained this  position. It  is  sufficient  if we refer to five  decisions  for  the present  purpose  :  Bhupendra Nath Chatterjee &  Ors.   Vs. Sm.   Trinayani  Devi [supra];  Inder Singh Nihal Singh  vs. Chief  Commissioner,  Delhi  & Anr., AIR  1963  Punjab  158; K.Syamalambal   v.   N.   Namberumal   Chettiar,  [1957]   I Mad.L.J.118;   Albert  Bonnan v.  Imperial Tobacco  Co.   of India  Ltd.   [supra]  and  Basamma  &  Ors.   v.   Peerappa [supra].

     As   a  general  principle   where  two  remedies  are available  under  law  one of them should not  be  taken  as operating  in derogation of the other.  A regular suit  will not  be  barred by a summary and a concurrent  remedy  being also provided therefor, but if a party has elected to pursue one  remedy  he  is bound by it and cannot  on  his  failing therein proceed under another provision.  A regular suit for compensation  is not barred by the omission to proceed under summary  procedure provided under Section 95 C.P.C., but  if an  application is made and disposed of, such disposal would operate  as a bar to regular suit whatever may be the result of the application.  There is, however, a difference between conditions   necessary  for  the   maintainability   of   an application  under Section 95 C.P.C.  and those necessary to maintain  a  suit.   The regular suit is based on  tort  for abusing  the process of court.  Under the law of torts in  a suit  for  compensation for the tort the plaintiff must  not only prove want of reasonable or probable cause of obtaining injunction  but  also  that the defendant was  attracted  by malice which is an improper motive.

     In  justifying a claim for damages apart from  Section 95  C.P.C., a distinction has to be drawn between acts  done without  judicial sanction and the acts done under  judicial sanction  improperly  obtained.   Proof  of  malice  is  not necessary  when  the property to a stranger, not a party  to the  suit,  is  taken  in execution  but  if  the  plaintiff bringing  a suit for malicious legal process is a party to a suit,  proof  of  malice is necessary.  The  plaintiff  must prove special damage.  The claim of a person for damages for wrongful  attachment of property can fall under two heads  - (1)  trespass  and  (2)   malicious  legal  process.   Where property  belonging to a person, not a party to the suit, is wrongly  attached,  the  action is really  one  grounded  on trespass.  But where the act of attachment complained of was done  under  judicial sanction, though at the instance of  a party,  the remedy is an action for malicious legal process. In  the  case  of  malicious legal  process  of  Court,  the plaintiff  has  to prove absence of probable and  reasonable cause.  In cases of trespass the plaintiff has only to prove the  trespass  and it is for the defendant to prove  a  good cause  or excuse.  In the former case plaintiff has to prove malice on the part of the defendant while in the latter case it  is  not  necessary.  This position has  been  succinctly brought  out  by  the  decision   in  K.Syamalambal  v.   N. Namberumal Chettiar [supra].

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     In  the  present  case,   the  facts  ascertained  are absolutely  clear  that the godown had been let out and  the firm  M/s  Bansidhar  Baijnath  or its  partners  could  not establish  any  title, right or interest in the said  godown after  the  decree  was passed in the  ejectment  suit  and, therefore,  they  had  no right to possess the  said  godown either  actually  or constructively by keeping  their  goods therein.   M/s  Bhagat  Oil Mills which was impleaded  as  a defendant  in  the suit was the sub-lessee of  the  disputed premises  and Baijnath Bhagat had appeared in the said  suit as  proprietor  and  on  his  death  other  defendants  were substituted  in  his  place.  In  those  circumstances,  all defendants  were  bound  by the decree of the  execution  of which  the  recovery  of  possession was  delivered  to  the plaintiffs-  respondents  by  the   bailiff  of  the  court. Defendants   Nos.   2  to  4   could  not  claim  any  right independent  of  Banshidhar  Baijnath and,  therefore,  even apart from Section 95 C.P.C.  the plaintiffs could institute an  independent  suit  for  damages  for  wrongful  use  and occupation  of the godown in question by defendants Nos.   1 to 4.  The decree-holders plaintiffs had no claim whatsoever over  the said oil seeds nor did they make any claim at  any stage.   There  was no dispute regarding the fact  that  the bailiff  had  kept  the goods in the custody of one  of  the employees of the plaintiffs and it is the defendants who had made  an application on the very next day for an  injunction and obtained the same.

     In the background in which the injunction was obtained and  the  manner  in  which  the  defendants  prevented  the plaintiffs  from utilising their premises, it is clear  that the  same  had been obtained on insufficient and  improbable grounds.  The intention of the parties is very clear that it is  only to deprive the defendants of the possession of  the premises  that  such  an order was obtained.  The  Bank  was pledgee  of  the  goods and could not claim  an  independent right  in  respect of the said premises.  The suit  premises was  not in their possession either under licence or by  way of lease.  They should not only have ascertained whether the goods belong to the pledgor but also should have known as to whether  the premises where the goods were kept belonged  to them  at  the  time  they obtained  the  pledge.   In  those circumstances, even the Bank cannot absolve itself of malice arising  in the case.  Want of pleadings or raising an issue in  a suit would arise where any party is put to  prejudice. In  a case where the facts are writ large and the parties go to  trial  on the basis that the claim of the other side  is clearly  known to them, we fail to understand as to how lack of pleadings would prejudice them.

     In  that  view of the matter, we think that  the  High Court   was  justified  in   dismissing  the  appeals.   We, therefore,  affirm  the  order made by the  High  Court  and dismiss these appeals with costs throughout.