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Allahabad High Court
Abid Husain vs Ganga Sahai And Anr. on 1 February, 1928
Equivalent citations: AIR 1928 All 353, 113 Ind Cas 441
Author: Dalal


Dalal, J.

1. Both these applications for revision arise from the same decision of the Court of Small Causes. The plaintiff Ganga Sahai sued Rabi Dat, his son-in-law Raj Kumar, and Abid Husain for the recovery of a sum of Rs. 230-1-0 Relief was claimed against Rabi Dat alone and in the alternative against Abid Husain, if any collusion should be proved between Rabi Dat and Abid Husain. The learned Judge dismissed the suit as against Rabi Dat and decreed it against Abid Husain on the very strange ground that Abid Husain had put forward no defence. The Court forgot the elementary principle of law that a plaintiff must prove his claim against a particular defendant before a decree can be passed against that defendant. The absence of a defendant is not tantamount to his admission of a claim. For reasons which will appear later Abid Husain was examined as a witness for the plaintiff, but in his statement he does not admit any liability to the plaintiffs’ claim.

2. The facts were these: Ganga Sahai brought a suit for recovery of money against Rabi Dat and attached a house and shop prior to judgment. Abid Husain held a decree against Rabi Dat for recovery of arrears of rent and in execution of his decree he attached this very house and put it to sale. The house was purchased by Rabi Dat’s son-in-law Raj Kumar, and in order to save the house from sale Ganga Sahai paid the amount due and saved the house from sale. This amount was taken out by Abid Husain in payment of his own decree.

3. The learned Judge of the Court of Small Causes held that Ganga Sahai made a voluntary payment and was not entitled to recover it from Rabi Dat who obtained the benefit of the payment. This is not sound law. In Section 69, Contract Act, a person who is interested in the payment of money which another is bound by law to pay, and who, therefore, pays it, is entitled to be reimbursed by the other. It has been pointed out by the learned Chief Justice in Tulsa Kunwar v. Jageshwar Prasad [1906] 28 All. 563 that the provisions of those sections are much wider than those of the English law on the subject. He quoted with approval from Sir Fredrick Pollock’s work on the Indian Contract Act:

It is enough for a person claiming under the provisions of this section to show that he had an interest in paying the money claimed by him at that me of the payment.

4. Even where a person is not under a contract legally bound to make a payment, but if he is only interested in making the payment, he would be entitled to be reimbursed under the provisions of Section 69, Contract Act. In the present case the plaintiff was interested in making the payment in order to save the house for the recovery of his own decree. The interest was sufficient to entitle him to make payment and to claim re payment afterwards from Rabi Dat.

5. In the result I set aside the decree against Abid Husain and pass a decree for the entire claim against Rabi Dat ex parte. Rabi Dat is not represented here to-day. The decree of this Court in this application will be that the decree of the Court of Small Causes is set aside with costs of this application to be paid by Rabi Dat.

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