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1965 SCC OnLine Raj 52 : 1965 RLW 346 : AIR 1966 Raj 229
In the High Court of Rajasthan
(BEFORE JAGAT NARAYAN, J.)
Sohan Lal
Versus
Gulab Chand
S.B. Civil Regular Second Appeal No. 148 of 1965
Decided on May 7, 1965
(a) — Evidence Act, Sec. 18 — Admission of one partner admissible against other where
both had same pecuniary interest.
SM, SL and B were partners in the firm Gauri Shankar Sohanlal and are jointly and severally liable
so Far as the liabilities of that firm are concerned. They have thus the same pecuniary interest in the
subject-matter of the present suit, even though the firm might have been dissolved this interest is
still continuing. The admissions of SM are thus admissible under sec. 18 of the Evidence Act against B
and SL.
(para 21)
(b) — Witness — Cross-examination — Defendant can cross-examine codependant or his
witness where he makes adverse statement.
Page: 347
Case law referred—
(1) Virayya v. Adenna (AIR 1930 P.C. 18)
(2) Khubchand v. Chittarmal (AIR 1931 All. 372)
(3) Jagir Singh v. Dheru (AIR 1958 Punjab 487)
(4) Chandi Ram v. Jamini Kanta (AIR 1952 Assam 92)
(5) Deputy Commissioner of Bara Banki v. Ram Parshad (ILR 27 Cal. 118)
(6) Maung Sit v. Ma Su (AIR 1917 Lower Burma 39 (2))
(7) Official Trustee of Madras v. Sundaramurthi (AIR 1921 P.C. 103)
(8) M.M. Essabhoy v. M. Haridas (AIR 1915 P.C. 2)
(9) Gangaram v. Hetram (1964 RLW 573)
(10) Kowsullish Sundari Dasi v. Mukta Sundari Dasi (ILR 11 Cal. 588)
(11) Meajan Matbar v. Alimuddi Mia (ILR 44 Cal. 130 : AIR 1917 Cal. 487)
(12) Ambir Ali v. Lutfe Ali (ILR 45 Cal 159 : AIR 1918 Cal. 971)
(13) Tikoo Ram v. Jhabar (ILR 10 Raj. 6)
(14) Dileshwar Ram Brahman v. Nohar Singh (48 Indian Cases 193)
(15) Harihar v. Nabakishore (AIR 1963 Orissa 45)
(16) Aumirtolall Bose v. Rajoneekant Mitter (2 Indian Appeals 113)
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(17) Dina Nathiv v. Sayad Habib (AIR 1929 Lahore 129)
(18) Narindar Singh v. C.M. King (AIR 1928 Lahore 769)
(19) Kirmany & Sons v. Aga Ali Akbar (AIR 1928 Mad. 919)
R.K. Rastogi and, J.S. Rastogi, for Appellants;
Sumer Chand Bhandari and Ram Vilas, for Respondent
The Judgment of the Court was delivered by
JAGAT NARAYAN, J.:— These connected appeals arise out of a suit for recovery of
goods in specie or in the alternative for damages.
2. The suit (No. 297 of 1950) was instituted in the Court of Civil Judge, Ratangarh,
on 20-7-50 by Chandmal against Hazarimal, Sohanlal, Bhanwarlal and Surajmal. The
facts necessary for the disposal of the present appeals are these. The case of the
plaintiff was that the defendants were partners in a partnership firm Gauri Shankar
Sohanlal of Karanpur which had closed its business. It was alleged that the plaintiff
purchased 176 bags of gur weighing 352 mds. on Chait Sudi 13, Smt. 2002 through
this firm of the defendants and kept there for sale, that the defendants sent an
account of their dealings with the plaintiff upto Kartik Sudi 1, Smt. 2002 showing a
credit balance of Rs. 9266-4-6 in his favour, that the price of gur was debited to him
in this account, but that it had not been sold by the date upto which the account was
sent and that on 15-6-46 the plaintiff served a notice on the defendants (asking them
to pay the price of the gur?). On that date the market rate of gur was Rs. 13/- per
maund and the price of 352 mds. of gur had been claimed at that rate in the plaint.
Further it was alleged that the plaintiff asked the defendants several times (to pay the
price of the gur or return it in specie?), but they kept on asking for time and finally on
1-7-50 defendants Nos. 1 to 3 made a refusal and hence the suit was being instituted.
Hazarimal and Bhanwarlal filed a written statement in which they asserted that they
were not partners of the firm Gauri Shankar Sohanlal and had nothing to do with the
transactions in suit. They denied all the allegations made in the plaint. Hazarimal died
during the pendency of the suit and Dhanraj, Champalal, Jiwanmal and Shiv Bhagwan
were impleaded as his legal representatives. These legal representatives filed a written
statement similar to that filed by Hazarimal and Bhanwarlal.
3. Sohanlal was served, but he did not appear to contest the suit. The suit
proceeded ex parte against him.
4. Surajmal filed a separate written statement. He admitted that he was a partner
of the firm Gauri Shankar Sohanlal. He also admitted that this firm purchased 176
bags of gur on behalf of the plaintiff and stored it, that the gur was debited to the
plaintiff, that the account of transactions up to Kartik Sudi 1, Smt. 2002 was sent by
the firm to the plaintiff in which the price of the gur was debited to him and that this
account showed a credit balance of Rs. 9266-4-6 in his favour and that the gur had
not been sold till then. He asserted however that the gur was sold in accordance with
the instructions of the plaintiff at Rs. 10-2-0 per maund for 3452-6-6. Further he
alleged that the firm Gauri Shankar Sohanlal carried on business at Sri Ganganagar
also and that Chand Mal entered into transactions through the agency of the firm at
Ganganagar in which he incurred losses as a result
Page: 348
of which Chandmal owed a sum of Rs. 7212-12-9 to the firm.
5. One Shri Suleman a clerk of the Civil Judge's Court was appointed as guardian
ad litem of Shiv Bhagwan and he filed a written statement on his behalf denying his
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liability. He did not admit any of the allegations made in the plaint and asserted that
he had no knowledge of the transactions in suit.
6. Chandmal died during the pendency of the suit and his son Gulab Chand was
impleaded as a plaintiff in his place.
7. The following are the relevant issues framed by the trial court:—
Issue No. 2.—Is the plaintiff entitled to the price of 352 mds. of gur at Rs. 13/-
per maund? Issue No. 4.—Did the plaintiff get the amount due to him as price of
gur adjusted against his account with the Ganganagar firm? Issue No. 6—Are
Bhanwarlal and the legal representatives of the Hazarimal liable?
The trial court held that the gur was sold for Rs. 3452-6-6 at Rs. 10-2-0 per maund as
alleged by the defendants. It held that this amount was adjusted against losses
incurred by the plaintiff in his dealings with the Ganganagar firm. Further that only
Sohanlal and Surajmal were the partners of the firm Gauri Shankar Sohanlal and not
the other defendants. Lastly it held that the suit was barred by limitation under article
47 of the Bikaner Limitation Act corresponding to article 89 of the Indian Limitation
Act. Under article 47 of the Bikaner Act the period of limitation for a suit by a principal
against his agent for movable property received by the latter and not accounted for
was three years. Time begins to run when the account is, during the continuance of
the agency, demanded and refused or, when no such demand is made, when the
agency terminates. The grounds for this finding as given by the learned Civil Judge
were two. One was that the gur was sold on 8-5-46 and time began to run from that
date. It may be mentioned here that there is no evidence on record that any
intimation was given to the plaintiff on 8-5-46 or on any other date that the gur had
been sold. This part of the finding of the learned Civil Judge is thus based on no
evidence. The other ground was that notice was sent by the plaintiff to the defendants
on 15-6-46 and time began to run from that date. It is mentioned in the plaint in para
7 that the plaintiff sent a notice on 15-6-46. This is no doubt an admission of the
plaintiff on which the defendants can rely. But there is no admission of the plaintiff to
the effect that the notice was actually served on the defendants. On the contrary the
defendants have denied that the plaintiff served any notice on them on 15-6-46. This
part of the finding also is thus based on no evidence. In the result the trial court
dismissed the suit.
8. On appeal the learned District Judge decreed the suit. He held that Art. 107 of
the Bikaner Limitation Act which corresponded to article 120 of the Indian Limitation
Act was applicable. The period of limitation under this article is six years from the date
when the right to sue accrues.
9. Having heard the learned counsel for the parties I am of the opinion that article
47 of the Bikaner Act corresponding to article 89 of the Indian Act is applicable to the
case and not article 107 corresponding to article 120 of the Indian Act as the suit is of
the nature referred to under the former article.
10. In the plaint it was alleged by the plaintiff that several demands were made by
him but the defendants kept on asking for time and eventually made a refusal on 1-7-
50. These allegations were denied by the defendants but no evidence was produced by
the plaintiff to prove them.
11. The contention on behalf of the defendants-appellants is that by virtue of
section 3 of the Limitation Act it was for the plaintiff to prove that his suit was within
time. The question which arises is as to whether the present suit was prima facie
within limitation. That in turn leads to the question as to the party on whom the
burden lies of showing either that the account was demanded and refused or the
agency terminated beyond three years of the institution of the suit. It was held in the
following two decisions that such a burden lies on the agent: Virayya v. Adenna (1),
Khub Chand v. Chittar Mal (2). It was held in Jagir Singh v. Dheru (3) that the burden
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of proof lies on the plaintiff in a suit against the legal representatives of the agent.
Page: 349
12. In this view of the matter the suit against Bhanwarlal, Sohanlal and Surajmal is
within limitation and the suit against the remaining defendants who are the legal
representatives of Hazarimal is barred by limitation. The suit is accordingly dismissed
against Dhanraj, Champalal, Jiwanmal and Shiv Bhagwan.
13. As has already been mentioned above Suleman was appointed as guardian ad
litem of Shiv Bhagwan in the trial Court. In the appeal the plaintiff did not implead
Shiv Bhagwan as a minor under the guardianship of Suleman. An objection was taken
before the appellate court that Shiv Bhagwan was not properly represented before it in
the appeal. This objection was overruled by the first appellate court. That order is
undoubtedly erroneous as the appointment of Suleman continued as he was never
removed from guardianship by an order of the court. The decision in the first appeal is
therefore not binding on Shiv Bhagwan. Civil miscellaneous appeal No. 23 of 1963 is
accordingly allowed. As the suit against Shiv Bhagwan is being dismissed it is not
necessary to remand the appeal against him for rehearing.
14. Coming now to the other findings of the learned Civil Judge the lower appellate
court has accepted the finding that the gur was sold for Rs. 3452-6-6. But the other
finding that the amount was adjusted towards losses incurred in the Ganganagar firm
was not accepted by it. In order to prove the alleged transactions carried on by the
plaintiff with the Ganganagar firm Surajmal defendant only produced the Khata of the
Ganganagar firm. This Khata does not give details of all the entries. It refers to pages
of the Naqal Bahi and Rokar Bahi. These two Bahis were not produced before the trial
court. The learned Civil Judge however relied on the entries made in the Khata which
were unsupported by the original entries made in the Naqal Bahi or the Rokar. The
lower appellate court was of the opinion that the Khata was not admissible under sec.
34 of the Evidence Act. The contention on behalf of the appellants is that this finding
is erroneous. The learned counsel for the respondent has supported the finding relying
on the decision in Chandi Ram v. Jamini Kanta (4). The learned counsel for the
appellants has on the other hand relied on the decisions in the Deputy Commissioner
of Bara Banki v. Ram Prashad (5) and Mating Sit v. Ma Su (6).
15. I am of the opinion that a Khata Bahi is certainly a book of account, and if it is
maintained in the regular course of business it is admissible in evidence under sec. 34
of the Evidence Act. But what weight can be attached to the entries in the Khata when
the original entries on which they are based are not produced is quite a different
matter. The lower appellate court was of the opinion that no reliance can be placed on
the entries in the Khata which have not been supported by corresponding entries in
the Rokar and Naqal Bahi. I agree with this opinion. I accordingly hold that the lower
appellate court rightly held that it has not been proved that any loss was incurred by
the plaintiff in his dealings with the Ganganagar branch of the firm Gauri Shankar
Sohanlal against which the amount of Rs. 3452/6/6 could have been adjusted.
16. If it had been shown that the plaintiff incurred losses in the Ganganagar firm
the defendants would certainly have been entitled to an equitable set off to the extent
of the losses as held by their Lordships of the Privy Council in Official Trustee of
Madras v. Sundaramurthi (7).
17. The next contention on behalf of the appellants is that there is no satisfactory
proof on record that Hazarimal and Bhanwarlal were partners of the firm Gauri Shankar
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Sohanlal. The trial court held that Hazarimal and Bhanwarlal were not partners in this
firm, but the appellate court held otherwise. The finding of the appellate court is one
of fact and is duly supported by the evidence on record. It cannot be interfered with in
second appeal.
18. So far as Surajmal is concerned the case against him is proved by his own
admission contained in the written statement and by the evidence produced by him in
court. So far as Surajmal's admission in the written statement is concerned the
contention on behalf of the appellants is that it is not open to the court to accept a
part what he has alleged in the written statement and reject the rest. Reliance is
placed in this connection on the following decisions: M.M. Essabhoy v. M. Haridas and
Gangaram v. Hetram. In both the above cases the admission
Page: 350
itself was a conditional one and it was held that a conditional admission in a pleading
cannot be so dissected as to accept a part and reject the rest. It must be either
accepted subject to the condition or not accepted at all. The allegation about the
purchase of gur was made in para 4 of the plaint and was admitted by Surajmal in
para 4 of his written statement unconditionally. The allegation that an account was
sent upto Kartik Sudi 1, Smt. 2002 in which a credit balance of Rs. 9266/4/6 was
shown in favour of the plaintiff and that the price of the gur was debited to him in this
account but the gur which had been purchased had not been accounted for in it was
made in para 6 of the plaint. This allegation was admitted by Surajmal in para 6 of his
written statement unconditionally. In para 13 of his written statement Surajmal
alleged that the credit items of Rs. 9265/4/3 due in favour of the plaintiff in the
account upto Kartik Sudi 1, Smt. 2002 and the credit item of Rs. 3452/6/6 which fell
due to him on 8-5-46 by the sale of the gur were adjusted against losses incurred by
him in the Ganganagar firm with the result that a sum of Rs. 7212/12/9 was due to
the firm from the plaintiff. This was an independent allegation which did not qualify
the admissions made in paras 4 and 6 of the written statement.
19. I accordingly hold that the lower appellate court rightly decreed the suit against
Surajmal for Rs. 3452/6/6 principal and Rs. 800/- interest.
20. Next it is contended that there is no evidence on record to justify the passing of
any decree against Bhanwarlal or Sohanlal. In my opinion the admissions made by
Surajmal in his pleadings as well as the evidence given by him in court are admissible
against the other co-defendants under sec. 18 of the Evidence Act, the relevant part of
which runs as follows:—
“Statements made by—
(1) Person who have any proprietory or
pecuniary interest in the subject matter
Admission by party interested in
of the proceeding, and who make the
subject matter
statement in their character of person so
interested………….
are admissions, if they are made during the continuance of the interest of the persons
making the statements.”
21. Surajmal, Sohanlal and Bhanwarlal were partners in the firm Gauri Shankar
Sohanlal and are jointly and severally liable so far as the liabilities of that firm are
concerned. They have thus the same pecuniary interest in the subject-matter of the
present suit. Even though the firm might have been dissolved this interest is still
continuing. The admissions of Surajmal are thus admissible under sec. 18 of the
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Evidence Act against Bhanwarlal and Sohanlal.
22. The above principle embodied in sec. 18 of the Evidence Act is a principle of
common law of England. I may here refer to the following extracts from Taylor on
Evidence, Twelfth Ed. Vol. I:—
Para 740—“With respect to the person whose admissions may be received, the
general doctrine is that the declarations of a party to the record, or of one identified
in interest with him, are, as against such party, I receivable in evidence, but, if they
proceed; from a stranger who is still living, they are almost uniformly rejected, and,
though he be dead, they cannot in general be admitted, unless upon some of the
special grounds already considered………………..”
Para 743—“When several persons are jointly interested in the subject-matter of
the suit, the general rule is that the admissions of any one of these persons are
receivable against himself and fellows, whether they be all jointly suing or sued or
whether an action be brought in favour of or against one or more of them
separately, provided the admission relates to the subject-matter in dispute, and be
made by the declarant in his character of a person jointly interested with the party
against whom the evidence is tendered………………………”
Para 750—“To render the admission of one person receivable in evidence against
another, it must relate to some matter in which either both were jointly interested,
or one was derivatively interested through the other. A mere community of interest
will not be sufficient. Thus, the admission of a servant of a negligent act, unless
such admission is part of the res gestae, is no evidence against his master…..”
Para 753—An apparent joint interest is obviously insufficient to make the
admissions of one party receivable against his companions where the reality of that
interest is the point in controversy. A foundation must first be laid, by showing,
prima facie, that a joint interest exists.
Para 754—In general, the statement of defence made by one defendant cannot
be read in evidence either for or against his co-defendant. Neither can the answer
to interrogatories of one defendant be read in evidence excepting against himself.
The reason is that, as there is no issue between the defendants, no opportunity can
have been afforded for cross-examination, and, moreover, if such a course were
allowed, the plaintiff might make one of his friends a defendant and thus gain a
most unfair advantage. But this rule does not apply to cases where the
Page: 351
other defendant claims through the party whose defence is offered in evidence nor to
cases where they have a joint interest, either as partners or otherwise, in the
transaction.”
23. In Kowsulliah Sundari Dasi v. Mukta Sundari Dasi (10) the admission made by
the co-sharer was treated as evidence against the other co-sharer. Reliance was placed
on the rule laid down in Taylor on Evidence Vol. I, 1st Ed., para 525, which is now
contained in para 743 quoted above.
24. In the head note of the ILR report sec. 18 of the Evidence Act is mentioned.
The above rule was cited with approval in Meajan Matbar v. Alimuddi Mia (11) and in
Ambar Ali v. Lutfe Ali (12).
25. The part of sec. 18 of the Evidence Act referred to above was relied upon in
admitting the evidence of the co-defendants in Tikoo Ram v. Jhabar (13), Dileshwar
Ram Brahman v. Nohar Singh (14), and Harihar v. Nabakishore (15).
26. On behalf of the appellants the decision of their Lordships of the Privy Council in
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Aumirtolall Bose v. Rajoneekant Mitter (16) was referred. The facts of that case are
distinguishable. The suit was brought by a daughter's son to recover his maternal
grandfather's share in the ancestral estates from his maternal aunts and the heirs of
his maternal grand uncles. The maternal aunts filed a petition admitting the plaintiff's
title as heir. But the heirs of the maternal grand uncles contested the suit on various
grounds. It was held that the admission of the maternal aunt was not admissible
against the heir of the maternal grand uncle. It is clear that the interest of the two
were not identical and therefore the rule laid down in sec. 18 of the Evidence Act
referred to above and in para 743 of Taylor on Evidence is not attracted (See para 750
of Taylor on Evidence in this connection). The other decisions relied upon by the
appellants are also distinguishable. In Dina Nath v. Sayad Habib (17), a suit for
damages for publishing a defamatory article was brought against the proprietor,
printer and publisher. The printer and publisher admitted that the person sued as
proprietor was in fact the proprietor of the paper. No evidence was produced by the
plaintiff to prove this fact. It was held that the admission of the printer and publisher
was not admissible against the proprietor. Here again the interest of the two
defendants were not identical. There was only a community of interest between them.
The admission of one was thus not applicable against the other. In Narindar Singh v.
G.M. King (18) the suit was brought for a libel published in the issue of a certain
newspaper against three persons Narindar Singh the alleged publisher, Abdur
Rahman, the alleged printer, and Pratap Singh, the alleged editor. It was held that the
admission of Abdur Rahman made in his written statement could not be treated as
evidence against the alleged publisher or the alleged editor. Although there was a
community of interest in the defendants their interests were not identical. For the
application of sec. 18 it is necessary that the interest should be identical.
27. Lastly it was contended that the oral and documentary evidence produced by
Surajmal in court cannot be treated as evidence against the co-defendants because
they could not have cross-examined him. I am unable to accept this contention. In
Kirmeny & Sons v. Aga Ali Akbar(19) the witness of one defendant did not make a
statement which might have injured the interest of the co-defendants. This decision is
therefore of no help. In all commentaries on the law of evidence the view has been
expressed that if the witness of a defendant makes any statement which is injurious to
the co-defendants they have a right to cross-examine him.
Sarkar on Evidence. Eighty Edition, page 1141—
“No special provision is made in the Evidence Act for the cross-examination of
the co-accused's or co-defendant's witnesses. But the procedure to be adopted may
be regulated by the wellknown rule that no evidence should be received against one
who had no opportunity of testing it by cross-examination; as it would be unjust
and unsafe not to allow a co-accused or co-defendant to cross-examine witness
called by one whose case was adverse to his, or who has given evidence against
him. If there is no clash of interest or if nothing has been said against the other
party there cannot be any right of cross examination.”
Principles & Digest of the law of Evidence by M. Monir. Third Edition, Page 1114.
—“A defendant or any other witness who has given evidence against him, and reply
on such evidence, though there is no issue joined between them-”
Phipson on Evidence. Tenth Edition, para 1538.— “A defendant may cross-
examine a co-defendant or any other witness who has given evidence against him,
and reply on such evidence, though there is no issue joined between them.”
Page: 352
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28. As the admissions contained in the oral and documentary evidence produced on
behalf of Surajmal are admissible in evidence against the co-defendants under sec. 18
they had a right to cross-examine him. They did not put a single question to Surajmal
in cross-examination to show that the admissions made by him in his pleadings or in
court were not true.
29. I accordingly decree the suit for Rs. 3452-6-6 principal and Rs. 800/- interest
against Sohanlal and Bhanwarlal also.
30. The result is that in S.B. Civil Regular Second Appeal No. 148 of 1961 the
appeals of Bhanwarlal, Sohanlal and Surajmal are dismissed and the appeals of the
remaining appellants are allowed. Civil Miscellaneous appeal No. 23 of 1963 filed by
Bhagwan is allowed.
31. In the circumstances of the case, I direct that parties shall bear their own costs
of these proceedings throughout.
32. Leave to file special appeal is prayed for by both the parties and is granted.
———
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