Find a Lawyer

First Appeal No. 20 of 1951, decided on 19th December 1957.

‑--- Principle for reliance on, in civil cases‑‑Such evidence should lead to one conclusion and should exclude other hypothesis. It is a well recognised principle that circumstantial evidence should be of such a nature that it can lead only to one and one conclusion alone and the circumstances relied upon cannot be explained by any other hypothesis.

Kamal Kumar Datta and another v. Nandalal Dubey A I R 1929 Cal. 37 and Kenchegowda v. P. Channiya and others A I R 1953 Mys. 22 ref.

, S. 114, illus. (g)‑Failing to produce best evidence‑Presumption against party failing.

If a party has failed to produce the best evidence in his pos session, it will be presumed that if such evidence were produced it would have gone against the cases of the party concerned.

Parmanand for Appellants.

Nathulal for Respondents.

.---‑ This is an appeal against the judgment of our learned brother Constantine, J. dated 23rd April ,1951, in Suit No. 120 of 1949 filed in the Chief Court of Sind.

The facts leading to the present appeal are that the appellants acted as clearing agents for the respondents in respect of their consignment of ten packages consisting of five bags of school books, one case of used account books, one bale of dry goat skins and three bales of goat hair. The respondents' cartman Shamsuddin on 16th October 1948 went to the godown of the appellants for the delivery of the said goods. Under a receipt (Exh. 8) dated 16th October 1948, the above‑mentioned goods were delivered to him. The respondents, however, by a letter dated 18th November informed the appellants that out of the said goods one bale of goat skins had been short‑delivered to their cartman and demanded delivery of the same. Ferozuddin (Exh. 21) visited the godown of the appellants and with their permission was able to discover the missing bale. The appellants refused to deliver this bale on the ground that they must return one handloom cloth bale wrongly delivered to the respondents on 16th October 1948. The respondents denied the delivery of any handloom cloth bale to them. Consequently the appellants filed a suit for the recovery of the price of one handloom cloth bale delivered to the respondents by mistake.

--- held that, the appellants delivered ten packages to the respondents but dismissed the suit on the ground that the respondents were involuntary bailees of the handloom cloth, that there is a presumption against the commission of tort and as the appellants had failed to prove that the respondents had destroyed the bale of handloom cloth intentionally or had appro priated it or had otherwise so acted with regard to the bale as to show a wrongful exercise of ownership, their case is hit by the well known English case of Howard v. Harris (1) reported in Kenny's cases on the Law of Tort at page 420.

Mr. Parmanand, the learned counsel for the appellants, has attacked the judgment of the lower Court on the ground that it is against to provisions of section 72 of the Contract Act and that the interpretation of this section is not subject to any quali fication or defences open under the ‑ common rules prevailing in England which have no statutory force. The learned counsel took us through the judgment of the trial Court and while going through the judgment it occurred to us a decision of the learned Judge on the question of the delivery of handloom cloth to the agent of the respondents was not based on a. proper appreciation of the evidence produced on record. We, therefore, called upon Mr. Parmanand to satisfy us that the finding of the learned Judge in his favour on this question of fact was proper and correct.

On hearing the counsel for the parties and on going through the evidence produced by them in the present case, we are of the opinion that the appellants have failed to establish in this case that one handloom cloth bale was delivered by mistake to the cartman of the respondents.

The appellants, in support of their case, have produced two witnesses viz. Harold Brown, the Manager of Eastern Express Co. Ltd. (Exh. 5) and Mr. Andrew Wood Anderson (Exh. 19) Godown Superintendent of the appellants. Both these witnesses have alleged that on 16th October 1948 one handloom cloth bale belonging to Messrs Grindlay & Co. stored in their godown was delivered by mistake to the cartman of the respondents. According to the evidence of these witnesses two bales of hand loom cloth were stored by the side of the respondents' goods and the godown‑keeper by mistake, instead of delivering one bale of goat skin to the respondents, delivered one bale of handloom cloth to Shamsuddin the cartman of the respondents. The evidence of these witnesses, however, is not direct and both of them are not eye witnesses to the delivery of the goods to the cartman of the respondents. Mr. Anderson (Exh. 19) has admit ted in his evidence that Amirali anti Britto gave delivery of goods to the respondents, but none of them has been produced to prove this fact. There is thus no direct evidence about the delivery of one handloom cloth bale by mistake to the respondents. The learned counsel for the appellants, however, took us through the evidence on the record and urged that there are sufficient circum stances on the record to establish that by mistake one handloom cloth bale was delivered to the agent of the respondents. The

(1) 1884 Cababe and Ellis 253 circumstances relied upon in support of the proof of his case are as under :‑

(1) Exh. 7, the delivery note.

(2) Receipt for packages delivered to Shamsuddin cartman.

(3) Exh. 11, receipt for packages delivered to Messrs P. M. Hafiz & Co., and the statement of Mr. Anderson.

The learned counsel urged that the contents of these documents along with the statement of Mr. Anderson (Exh. 19) conclusively prove that one handloom cloth bale was delivered by mistake to the agent of the respondents. In our opinion the circumstan tial evidence led in this case is not of a conclusive nature. There is the positive evidence of Shamsuddin cartman (Exh. 20) that he got delivery of nine articles on behalf of the respondents and that he was certain that it was not ten. The trial Judge has not disbelieved the statement of Shamsuddin cartman (Exh. 20) and Ferozuddin (Exh. 21) the proprietor of the respondent firm. The learned trial Judge's observation about these witnesses is that he had no doubt that the cartman was a perfectly honest person and that the respondent's evidence shows that he was honest. This is what the learned Judge has observed about witness Shamsuddin (Exh. 20) at page 47 :‑

"The cartman was examined. He is illiterate. His uncle Kassim has worked on hehalf of the defendant for many years, and the defendant testifies to their honesty, and I have no doubt that the cartman was perfectly honest".

At page 50 the learned Judge's observation about the evidence of respondent Ferozuddin (Ex. 21) is as under :‑

"I consider that the defendant has satisfactorily explained why he delayed until the 18th November in claiming the short delivery of the goat skins. I am also satisfied that the defendant has not misappropriated the bale of handloom cloth; for I consider that he showed in his evidence that he was honest."

But the circumstances which the learned Judge has relied upon in arriving at the conclusion that the cartman took away the handloom bale instead of the goat skin bale are as follows :‑

"The Superintendent has stated that it is merely his inference that the cartman took away the handloom bale instead of the goat skin bale, but I think that this inference is based upon such facts that it is irresistible. It is true that the cartman when asked by the defendant, said that only nine packages had been given to him; but this was practically a month after the packages had been delivered and this cartman does a fair amount of carting on behalf of his uncle. Moreover, it appears to me that the question put to him before the 18th November could not have been whether he brought ten packages, but only whether he had brought a bale of goat skins; for it is most unlikely that the defendant before approaching the plaintiffs would realise that a mistake of one bale for another had been made. It could be only after the defendant had gone to the plaintiffs that he was told about this mistake, and in fact in his written statement he states that no demand was made for the handloom cloth until the 27th of November. I do not therefore rely on the cartman's statement that he did not bring ten packages and that he brought no bale of handloom cloth. The cartman himself says it was not till a month later that he came to know that one package was short, and he says that he remembered by guessing. The defendant pays his contractor so much per package and no accounts have been produced to show that he paid him only for carting nine packages."

The reasons given by the learned trial Judge for coming to the conclusion that one handloom bale was delivered by mistake instead of one goat skin bale are not at all convincing and are also not borne out by the evidence produced on the record. It is a well recognised principle that circumstantial evidence should be of such a nature that it can lead only to one and one conclusion alone and the circumstances relied upon cannot be explained by any other hypothesis. In (Kamal Kumar Datta and another v. Nandalal Dubey)( A I R 1929 Cal. 37), Mukerji, J. observed :‑

"Whether the defendant has succeeded in discharging this burden is to be judged by the well‑recognised rule of circum stantial evidence that such evidence should not merely point to the inference that is to be drawn, but that the evidence must be of such a nature that it can possibly lead to no other inference. "

In (Kenchegowda v. P. Channaiya and others), (A I R 1953 Mys 22) Balakrish naiya, J. in connection with circumstantial evidence observed :‑

" Ordinarily, circumstantial evidence cannot be regarded as satisfactory as direct evidence. The circumstances may lead to particular inferences and the relationship to true facts may be more apparent than real. The value of circumstantial evidence has to be assessed on consideration that it must be such as not to admit of more than one solution, and that it must be inconsistent with every proposition or explanation that is not true. If these conditions are fulfilled, circumstantial evidence may approximate to truth and be preferred to direct evidence."

Judging the present case in the light of the above principles, it appears to us that the appellants have miserably failed to establish by circumstantial evidence that one handloom bale was delivered by mistake to the cartman of the respondents. The appellants have not produced the most important witnesses in this case viz. Amirali and Britto who actually delivered the goods to the cartman of the respondents. Mr. Anderson has stated that these two persons are no longer employed by the appellant company, taut that is no ground for not producing them as witnesses in the case. No attempt was made to summon these two persons as witnesses in the case.

The most important question involved in this matter was whether the two handloom bales belonging to Messrs Grindlay & Co. were stored along the side of the respondents' goods. This could have been proved by the production of the godown stock book. Mr. Anderson has admitted in his statement that such a stock book was in existence but the appellants failed to produce this stock book. Under section 114 of the Evidence Act, if a party has failed to produce the best evidence in his possession. B it will be presumed that if such evidence were produced it would have gone against the case of the party concerned. There is yet another fact in the present case which shows that the conduct of the appellants in this case is not above board. According to them, the disappearance of one handloom bale was detected by them within three days of the delivery of the goods to the respondents' cartman. This is admitted in a letter written by the appellants to .the respondents on 27th November 1948 (Ex. 12). The appellants wrote as under :‑

" Both the bale of Handloom cloth and your bale of kid goatskins were lying side by side in G Shed at our godowns and the absence of the bale of Handloom cloth was noticed on or about the 19th ultimo i.e., within 2/3 days of your cartman taking delivery of 10 packages".

This letter was written by Mr. Harold Brown (Ex. 5) and he has explained this admission by saying that this was only a clerical mistake. In what way it is a clerical mistake the learned counsel for the appellant has failed to satisfy us on this point. With these clear admissions on the record, in the ordinary course. of events it was expected that the appellants would immediately communicate with the respondents and inform them that one handloom bale was delivered to them by mistake and their goatskin bale was lying in their own godown, but this course was not adopted by them. This conduct clearly shows that it is possible that the handloom bale was not delivered to the respondents' cartman but might have disappeared with the aid and connivance of the appellants' employees. There is also the possibility that only nine bales were delivered to the respondents' cartman and a receipt for ten bales might have been obtained from the cartman, who is admittedly an illiterate person and does not know how to read and sign and therefore had to put his thumb impression on the receipts in dispute. Under these circumstances we are not satisfied with the evidence produced on behalf of the appellants and we cannot come to a definite conclusion by the circumstantial evidence produced on the record that on 16th October 1948 one handloom bale belonging to Messrs Grindlay & Co.: was delivered by mistake to the respondents.

Under these circumstances there is no other alternative for us but to differ from the finding of the learned Judge below on this important question of the case and to decide it against the appellants.

For the reasons given above, we dismiss the appeal, but in the circumstances of the case we would order that the parties will bear their own costs.

A. H. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.