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PETITIONER: ISWAR BHAI C. PATEL & BACHU BHAI PATEL

       Vs.

RESPONDENT: HARIHAR BEHERA & ANR.

DATE OF JUDGMENT:       16/03/1999

BENCH: S.Saghir Ahmad, & M B Shah.

JUDGMENT:

S. Saghir Ahmad, J.

     The  appellant was defendant No.  1 in a suit filed by respondent No.1 for recovery of a sum of Rs.7,000/- together with  damages  (Rs.1400/-)  in  the trial  court  which  was dismissed  as against him but was decreed against the second defendant,  namely, respondent No.2 who, incidentally,  also is   the  natural  father  of   respondent  No.1   who   was subsequently adopted by his maternal grandfather.

     Respondent  No.1 had a current account in the  Central Bank  of  India  Limited, Sambalpur Branch  which  was  also operated by his natural father, namely, respondent No.2.

     According  to  the  facts  set   out  in  the  plaint, respondent No.1 was registered as a money lender in October, 1958  and  in that capacity he used to advance loan  through his  natural father to different persons out of his  account in  the Bank which, as pointed out above, was also  operated by his natural father.  On the expiry of the licence, he did not  get it renewed but the authority of his natural  father (defendant No.2) to operate the account continued and taking advantage of this authority, defendant (respondent) No.2, on the  persuasion  of  the  appellant,  issued  a  cheque  for Rs.7,000/-  on  the  current account of respondent  No.1  on 29.4.1964  which was encashed by the appellant.  This amount was  not  paid  back by the appellant in spite  of  repeated demands  and, therefore, the suit was filed both against the appellant  as also respondent No.2 who had issued the cheque to the appellant.

     The  appellant, in his written statement, pleaded that there  was  no  relationship  of debtor  and  creditor  with respondent  No.1  as the amount was advanced  personally  by defendant  (respondent) No.2 and, therefore, respondent No.1 had  no right to institute a suit against him specially when respondent  No.2  while advancing the money to him  had  not acted  as  agent  of respondent No.1.   The  appellant  also raised the plea of Section 8 of the Orissa Money Lenders Act and  contended  that  since  respondent   No.1  was  not   a registered  money lender on the date on which the amount  of Rs.7,000/-  was  advanced to him as loan, the suit  was  not maintainable  as  the amount was advanced in the  course  of regular  money  lending business.  It was also pleaded  that since  some  dispute  had arisen between the  appellant  and

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defendant (respondent) No.2 with regard to the adjustment of the  appellant’s  dues against respondent No.2, the  latter, namely,  respondent No.2 got the suit filed through his  son on false pleas.

     Respondent  No.2,  in his separate written  statement, pleaded that he was very close to the appellant who dealt in tobacco  business  and whenever he was in need of money,  he would  approach  respondent  No.2  for  financial  help  and respondent  No.2  would lend him the money required  by  the appellant.   It was pleaded that on 29th of April, 1964, the appellant  had  approached respondent No.2 for payment of  a sum  of  Rs.7,000/-  for  a  short  period  and,  therefore, respondent No.2 issued a cheque for that amount in favour of the  appellant  on  that  day  on  the  current  account  of respondent No.1 in the Central Bank of India Ltd., Sambalpur Branch.   When  respondent  No.1  came   to  know  of   this transaction,  he  demanded repayment of the amount  but  the appellant  instead of paying the amount to respondent  No.1, proposed  to  set off his own dues against respondent  No.2. It  was  pleaded that since the appellant had withdrawn  the amount  from respondent No.1’s account through a cheque duly issued  to him by respondent No.2, he was liable to pay  the amount to respondent No.1.

     The  suit was decreed by the trial court only  against respondent No.2 for a sum of Rs.8,400/- but was dismissed as against  the appellant on the ground that the appellant  had not  approached  respondent  No.1 nor  had  respondent  No.1 advanced  the  amount of Rs.7,000/- to the  appellant.   The trial  court was of the opinion that the case of agency  was not  made out and respondent No.2 could not be treated to be the  agent  of  the  appellant.   It  was  found  that   the transaction  in  question was directly entered into  by  the appellant with respondent No.2 and respondent No.1 was in no way  involved  at any stage in that transaction.   The  High Court,  in  appeal, modified the decree passed by the  trial court  and  decreed  the suit against both  the  defendants, namely,  the present appellant as also respondent No.2.   It is  against  this judgment that the present appeal has  been filed.

     The  contention raised by the learned counsel for  the appellant  is  that  the  respondent No.1 had  no  right  to institute an appeal in the High Court as the trial court had already  decreed the suit.  It is contended that though  the decree  was  passed  only against respondent  No.2  and  not against  the appellant, it was wholly in consonance with the prayer  made  by  respondent No.1 himself in his  plaint  in which  he  had claimed a decree either against  the  present appellant  or  against respondent No.2.  Since the suit  was decreed  against  respondent No.2, there was no occasion  to file an appeal against that decree in the High Court.

     Para  9  of  the plaint, a copy of  which  was  placed before us, reads as under:-

         "9.   Plaintiff prays for a decree of Rs.  8,400/-           with costs of suit against both the defendants, to           be  realised  -  severally   from  either  of  the           defendants,  with interest pendentilite and future           at the rate of 7 PC.  per annum."

     The  relief clause of the plaint extracted above would show  that respondent No.1 had claimed a decree for a sum of

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Rs.8,400/-  against both the defendants so that it could  be realised  from  both the defendants or from either of  them. This   was  a  legitimate   and  reasonable  prayer.   Since defendant  (respondent)  No.2  had advanced  the  amount  in question to the appellant on the account of respondent No.1, both of them, namely, the appellant and respondent No.2 were jointly  and  severally  liable  to   pay  that  amount   to respondent  No.1.  Having claimed a decree against both  the defendants,  the  plaintiff (respondent No.1) put it in  the plaint  that a decree be passed against both the  defendants so  that the decretal amount may be realised from either  of the  defendants.

     Since  the  trial  court  had decreed  the  suit  only against  respondent  No.2 and not against the appellant,  it was  open  to respondent No.1, in this situation, to  invoke the  jurisdiction  of the appellate court for decreeing  the suit even against the appellant.

     This can be viewed from another angle.

     Order 1 Rule 3 provides as under:-

     "R.3.  Who may be joined as defendants.

     All  persons  may be joined in one suit as  defendants where-

     (a)  any right to relief in respect of, or arising out of,  the  same  act  or transaction or  series  of  acts  or transactions  is  alleged  to exist  against  such  persons, whether jointly, severally or in the alternative;  and

     (b)  if  separate  suits  were  brought  against  such persons, any common question of law or fact would arise."

     This  Rule  requires  all  persons  to  be  joined  as defendants in a suit against whom any right to relief exists provided  that  such  right  is based on  the  same  act  or transaction  or series of acts or transactions against those persons  whether  jointly, severally or in the  alternative. The additional factor is that if separate suits were brought against  such persons, common questions of law or fact would arise.   The purpose of the Rule is to avoid multiplicity of suits.

     This Rule, to some extent, also deals with the joinder of  causes  of action inasmuch as when the plaintiff  frames his  suit, he impleads persons as defendants against whom he claims  to  have  a cause of action.  Joinder of  causes  of action  has  been  provided  for in Order  2  Rule  3  which provides as under:-

     "R.3.  Joinder of causes of action.

         (1)  Save  as otherwise provided, a plaintiff  may           unite  in  the same suit several causes of  action           against the same defendant, or the same defendants           jointly;   and  any  plaintiffs having  causes  of           action  in  which  they   are  jointly  interested           against  the same defendant or the same defendants           jointly  may  unite such causes of action  in  the           same suit.

         (2)  Where  causes  of   action  are  united,  the

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         jurisdiction  of  the  Court as regards  the  suit           shall  depend  on  the  amount  or  value  of  the           aggregate   subject-matters   at   the   date   of           instituting the suit."

     These two provisions, namely, Order 1 Rule 3 and Order 2  Rule  3  if read together indicate that the  question  of joinder  of  parties also involves the joinder of causes  of action.   The  simple principle is that a person is  made  a party  in a suit because there is a cause of action  against him  and  when causes of action are joined, the parties  are also joined.

     Now,  the  respondent No.1 in his plaint  had  pleaded that from his current account in a bank which was authorised to  be operated by his father, namely, respondent No.2 also, an  amount  of  Rs.7,000/-  was  lent by  a  cheque  to  the appellant.   Since the money had reached in the hands of the appellant,  though not directly through respondent No.1  but via  his  father, he had a cause of action against both  the defendants,  namely, the appellant and respondent No.2  both of whom were, therefore, impleaded as defendants in the suit particularly  as  it was one transaction in which both  were involved.   In  this situation, therefore, if the  suit  was dismissed against one of them by the trial court, respondent No.1  had  the  right to file an appeal against  the  person against whom the suit was dismissed, notwithstanding that it was decreed against the other.

     Learned  counsel for the appellant next contended that the trial court was justified in recording a finding that it was  a  transaction  which  had  taken  place  directly  and personally  between  respondent  No.2 and the  appellant  in which  respondent  No.1  had,  at  no  stage,  figured  and, therefore,  the  suit  was decreed  only  against  defendant (respondent) No.2 and not against the appellant.  It is also contended  that the trial court was justified in recording a finding  that  the case of "agency" was not established  and the  High Court was not justified in upsetting that finding. This contention too has no merit.

     Admittedly  defendant  No.1  had  an  account  in  the Central  Bank  of India Limited, Sambalpur Branch which  his father,  namely, respondent No.2, was authorised to operate. It  is  also an admitted fact that it was from this  account that  the amount was advanced to the appellant by respondent No.2.   It has been given out in the statement of respondent No.2  that when the appellant had approached him for a  loan of  Rs.7,000/-,  he had explicitly told him that he  had  no money  to lend whereupon the appellant had himself suggested to  advance the loan from the account of respondent No.1 and it was on his suggestion that the respondent No.2 issued the cheque  to  the appellant which the  appellant,  admittedly, encashed.   This  fact  has  not been  controverted  by  the appellant  who  did  not  enter the witness box  to  make  a statement  on  oath  denying   the  statement  of  defendant (respondent)  No.2  that  it  was   at  his  instance   that respondent  No.2 had advanced the amount of Rs.  7,000/-  to the  appellant  by  issuing  a  cheque  on  the  account  of defendant  (respondent)  No.1.  Having not entered into  the witness   box   and  having   not  presented   himself   for cross-examination,  an  adverse presumption has to be  drawn against  him  on  the  basis   of  principles  contained  in illustration (g) of Section 114 of the Evidence Act.

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     As  early  as  in 1927, the Privy  Council  in  Sardar Gurbakhsh  Singh  v.   Gurdial Singh and another,  AIR  1927 Privy  Council  230,  took note of a practice  prevalent  in those  days of not examining the parties as a witness in the case and leaving it to the other party to call that party so that  the  other party may be treated as the witness of  the first  party.  Their Lordships of the Privy Council observed as under:-

         "Notice has frequently been taken by this Board of           this  style of procedure.  It sometimes takes  the           form  of a manoeuvre under which counsel does  not           call  his own client, who is an essential witness,           but  endeavours  to force the other party to  call           him,  and so suffer the discomfiture of having him           treated  as  his, the other party’s, own  witness.

         This  is thought to be clever, but it is a bad and           degrading  practice.  Lord Atkinson dealt with the           subject  in  Lal  Kunwar  v.   Chiranji  Lal  (1),           calling  it  "a  vicious practice, unworthy  of  a           high-toned or reputable system of advocacy."

         They further observed as under:-

         "But  in any view her non-appearance as a witness,           she being present in Court, would be the strongest           possible circumstance going to discredit the truth           of her case."

         Their  Lordships also took note of the High  Court           finding which was to the following effect:-

         "It is true that she has not gone into the witness           box, but she made a full statement before Chaudhri           Kesar  Ram,  and it does not seem likely that  her           evidence  before the Subordinate Judge would  have           added  materially  to  what she had  said  in  the           statement."

         They  observed:-

         "Their  lordships  disapprove of  such  reasoning.           The  true  object  to be achieved by  a  Court  of           justice  can  only be furthered with propriety  by           the  testimony of the party who personally knowing           the whole circumstances of the case can dispel the           suspicions attaching to it.  The story can then be           subjected    in    all     its   particulars    to           cross-examination."

     This  decision has since been relied upon  practically by  all  the  High Courts.  The Lahore High Court  in  Kirpa Singh  vs.   Ajaipal  Singh and others, AIR 1930  Lahore  1, observed as under:-

         "It  is significant that while the plaintiffs  put           the  defendant in the witness-box they  themselves           had  not  the courage to go into the  witness-box.           Plaintiffs  were the best persons to give evidence           as  to  the  "interest" possessed by them  in  the

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         institution  and  their  failure to  go  into  the           witness-box  must in the circumstances go strongly           against them."

     This  decision was also relied upon by the Bombay High Court  in  Martand  Pandharinath   Chaudhari  vs.   Radhabai Krishnarao  Deshmukh, AIR 1931 Bombay 97, which observed  as under:-

         "It  is  the  bounden duty of a  party  personally           knowing  the  facts  and  circumstances,  to  give           evidence  on  his  own  behalf and  to  submit  to           cross-examination  and  his  non-appearance  as  a           witness   would   be    the   strongest   possible           circumstance  which will go to discredit the truth           of his case."

     The  Lahore  High  Court in two other cases  in  1934, namely,  Bishan  Das vs.  Gurbakhsh Singh and  another,  AIR 1934  Lahore 63(2) and Puran Das Chela vs.  Kartar Singh and others, AIR 1934 Lahore 398 took the same view.

     A  Divison  Bench  of the Patna High  Court  in  Devji Shivji vs.  Karsandas Ramji and another, AIR 1954 Patna 280, relying  upon  the decision of the Privy Council  in  Sardar Gurbakhsh  Singh vs.  Gurdial Singh and another (supra)  and the  Madhya Pradesh High Court in Gulla Kharagjit  Carpenter vs.  Narsingh Nandkishore Rawat, AIR 1970 Madhya Pradesh 225 have  also  taken  the same view.  The Madhya  Pradesh  High Court  also  relied  upon the following observation  of  the Calcutta  High  Court  in Pranballav Saha & Anr.   vs.   Sm. Tulsibala Dassi & Anr., AIR 1958 Cal.  713 :-

         "The  very fact that the defendant neither came to           the   box  herself  nor   called  any  witness  to           contradict  evidence  given  on oath  against  her           shows that these facts cannot be denied.  What was           prima facie against her became conclusive proof by           her  failure to deny.

     "  The  Allahabad  High  Court   in  Arjun  Singh  vs. Virender  Nath and another, AIR 1971 Allahabad 29, held that :-

         "the  explanation  of any admission or conduct  on           the  part  of a party must, if the party is  alive           and  capable of giving evidence, come from him and           the court would not imagine an explanation which a           party  himself  has  not chosen to give."

         It was further observed that:-

         "If  such  a  party  abstains  from  entering  the           witness  box  it  must give rise to  an  inference           adverse against him.

     A  Division  Bench of the Punjab & Haryana High  Court also in Bhagwan Dass vs.  Bhishan Chand and others, AIR 1974 Punjab  & Haryana 7, drew a presumption under Section 114 of the  Evidence  Act that if a party does not enter  into  the witness  box, an adverse presumption has to be drawn against that  party.

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     Applying  the  principles stated above to the  instant case,  it  would be found that in the instant case also  the appellant  had  abstained from the witness box and  had  not made  any  statement on oath in support of his pleading  set out  in  the written statement.  An adverse  inference  has, therefore,   to  be  drawn  against   him.   Since  it   was specifically  stated by respondent No.2 in his statement  on oath  that  it was at the instance of the appellant that  he had  issued the cheque on the account of respondent No.1  in the  Central  Bank of India Ltd., Sambalpur Branch, and  the appellant,   admittedly,  had  encashed   that  cheque,   an inference has to be drawn against the appellant that what he stated  in the written statement was not correct.  In  these circumstances,  the  High  Court   was  fully  justified  in decreeing  the  suit of respondent No.1 in its entirety  and passing a decree against the appellant also.

     For the reasons stated above, we find no merit in this appeal which is dismissed with costs.