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Allahabad High Court
Suraj Mal And Anr. vs Mt. Chhote on 3 February, 1926
Equivalent citations: AIR 1926 All 411, 94 Ind Cas 1003


1. The plaintiff, Mt. Chhote, is the daughter of one Jhandu, who died in 1905, leaving some estate in respect of which the name of Mt Lali was entered in the revenue papers on his death. Mt. Lali died in 1910. The allegation of the plaintiff was that she was a minor on the date of her death and that the defendants, taking advantage of her minority, got their names recorded in the revenue papers in respect of the estate left by Jhandu, deceased, and standing in the name of Mt. Lali, although they had no right to the same, Mt. Chhotte brought this suit for possession of the said property with mesne profits, claiming to be entitled to the benefit of Section 7 of the Indian Limitation Act. She stated that she was about 20 years old on the data of the institution of the suit. The defendant-appellants contested the suit on three grounds. Their first plea was that Jhandu had left a son about a year old, who died a month later, and that the plaintiff was not the heir of the last male holder. The other ground was that the plaintiff was 32 years old on the date of the suit and that the claim was consequently barred by limitation and adverse possession for more than twelve years. The third plea was that one of the properties claimed by the plaintiff, namely, a certain gher, or enclosure, did not belong to Jandhu, through whom the plaintiff claimed to derive her title.

2. On the date fixed for the determination of issues the plaintiff was not; personally present. Her pleader was present and was accompanied by Bhartu, the brother of her husband, who was apparently acting as a pairokar, or agent deputed to look after the suit. The Court examined Bhartu under Order 10, Rule 2 of the Civil P.C., and asked him whether Jhandu had left a son at the time of his death; and his reply was that there was such a son in existence at the time of the death of Jhandu about a year old and that the boy had died a month after his death. The Court thereupon asked the pleader for the plaintiff whether he agreed to accept the statement of Bhartu; and his reply was that Bhartu was the pairokar of the plaintiff and that she “should” be bound by his statement. The Court thereupon framed certain issues, which were far from exhaustive on the points raised in the defence, and dismissed the claim on the preliminary ground that the plaintiff was, on the statement of Bhartu, not an heir of Jhandu under the Mitakshara law applicable to the case. The lower appellate Court, however, held that since Bhartu was not a recognized agent, but had merely accompanied the pleader of the plaintiff to help him in the case, the plaintiff was not bound by his statement. Or. 10, Rule 2, Civil P.C. provides that:

At the first hearing of the suit, or at any subsequent hearing, any party appearing in person or present in Court, or any person able to answer any material questions relating to the suit by whom such party or his pleader is accompanied, may be examined orally by the Court; and the Court may, if it thinks fit, put in the course of such examination questions suggested by either party.

3. The answers given by Bhartu were not recorded on oath, but, as provided by Rule 3, the substance of the examination was reduced to writing by the Judge and forms part of the record. The authority of a person accompanying a pleader merely to prosecute a case or to look after it is necessarily limited. Such a person may not be a recognized agent within the meaning of Order 3, Rule 2, Civil P.C. Bhartu had no power-of-attorney from the plaintiff, authorizing him to appear and act on behalf of the plaintiff. He was only appearing as a person interested in the case by reason of his relationship with the plaintiff, who was a pardanashin lady; and whatever weight might have been attached to his statement, had it been recorded on oath as a witness present in Court or cited by a party, the answer given by such a person in answer to an enquiry made by the Court to clear up any material question arising in the case would not necessarily bind the party on whose behalf he appeared to prosecute the case. As observed in Janku Prasad v. Arku Lal [1905] 2 ALJ 777 the aforesaid provision is intended to enable a Court to ascertain what were questions in controversy between the parties and is not intended to be in substitution for a regular examination on oath. Any statement made by a party, while being examined under that provision, is binding only on the person who made the statement to the same extent as the statement made by a pleader engaged by him may be binding on him; but a statement made by a parson who merely appears to prosecute a case or to look after it on behalf of a party, not personally present or who is unable to be present, does not stand on the same footing. If the statement made by him in Court in regard to any material fact is admitted or accepted by the party concerned or his pleader to be correct, it may help to narrow down the issues; but the pleader for the plaintiff in the present case was careful enough not to commit himself definitely to what Bhartu has stated. He thought that it should bind the plaintiff, but it is open to the plaintiff to say that statement was not made by Bhartu under her instructions.

4. In these circumstances the decision of the Court below cannot be disturbed. The appeal is dismissed with costs including in this Court fees on the higher scale.

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