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Civil Revisions Nos. 652 and 653 of 1962, decided on 27th May 1963.
S. 115 (c) read with O. XIV, r. 1‑Revision‑Lies on ground of wrong allocation of burden of proof‑Material irregularity must first be established before it can be said that it has affected decision of case‑Evidence Act (I of 1872), S. 102
Held, that Revision lies on ground of wrong allocation of burden of proof between parties.
Interference with the trial Court should be made if the terms of clause (c) of section 115, C. P. C., have been violated, but interference will not be made if those terms have not been violated merely because the result is going to be that the applicant‑defendants will lose the case owing to their failure to disprove the case of the respondent‑plaintiff. If the case of the plaintiff is prima facie satisfactory then the trial must begin with an advantage to the plaintiff, though the burden of proof will shift from one side to the other, according to the state of evidence, during the progress of the trial.
Bibi Gurdevi v. Chaudhri Muhammad Bakhsh A I R 1943 Lah. 65 rel.
Ramesh Chandra v. H. D. Jain College A I R 1957 Pat. 145; Gouda Ram v. Rehana and others A I R 1921 Lah. 166 ; T. A. Balakrishna Udayar v. Vasudeva Ayyar A I R 1917 P C 71 and N. S. Venkatagiri Ayyangar v. The Hindu Religious Endowments Board P L D 1949 P C 26 ref.
Lal Chang Mangal Sain v. Behari Lai Mehar Chand A I R 1924 Lah. 425 ; Santu v. Sohan Lai A I R 1951 Pepsu 33 and Nagori Ibrahim v. Shahji Babumal A I R 1954 Rajas. 83 considered.
Bashir Ahmad, Noorul Arifin and Raja Muhammad Akram for Petitioner.
Norman Edmunds for Respondents.
Dates of hearing : 15th, 16th, 17th and 18th May 1963.
These two revision applications are directed against the same order of the learned trial Judge Mr. Ishaq Rahim Bakhsh, Civil Judge, First Class, Lahore, dated the 10th of November 1962, by which he framed 7 issues in Suit No. 142/1 of 1962 and, over ruling the objections of counsel for the present applicants, placed the onus of the issues on the applicants. The suit has been instituted by Broome and Wellington Ltd., of England against Kohinoor Industries Ltd. and Mr. Rafique Saigol as defendants No. 1 and 2 respectively. The suit is for the recovery of Rs. 28,46,666.00 against defendant No. 1 and in the alternative for the recovery of the same amount against defendant No. 2 as damages for breach of warranty of agency.
2. The case of the plaintiff, shorn of its trimmings, can be stated to be that defendant No. 2 had the authority, or was made to appear, that he had the authority to enter into a contract on behalf of defendant No. 1, and did conclude a contract with the plaintiff, but later on not only resiled from it but the existence of his authority was also denied. In support of this case a large number of documents were produced in Court on behalf of the plaintiff. The defendants pleaded that there could be no such authority in the eye of law and that nothing was done to create the impression that such authority existed and in any event the plaintiff had the means to discover as well as was in duty bound to discover that such an impression could not be legally correct. The following issues were framed by the trial Court on the pleadings of the parties :‑
"(1) Whether the suit is not validly and legally constituted
(2) Was not Mr. Rafique Saigol authorised or made to appear as authorised by defendant No. I to conclude the impugned contract between the plaintiff company and defendant No. 1
(3) Whether defendant No. 2 had not signed document 5528 in token of having accepted the terms of the contract but only as an offer
(1) Whether defendant No. 1 is not liable to pay as damages the difference between the price of contract (in case the Court comes to a finding that a contract has been concluded) and the prices of the respective seven qualities as per price list of defendant No. I himself during 1960
(5) In case defendant No. 1 is not found liable to plaintiff on the impugned contract No. 5528, is defendant No. 2 Mr. Rafique Saigol not liable to the plaintiff if issue No. 3 is found against him
(6) If issue No. 5 is found against defendant No. 2, is he not liable for the damages claimed by the plaintiff
(7) Was not document No. 5528 a validly concluded contract"
3. Both the defendants have come in revision to this Court on the ground that the burden of proof of all the issues has been wrongly placed on them. I have heard counsel for the parties on three occasions for about a week in all. The hearing could not be concluded on the first two occasions, and the explanation for it can be found in my order dated the 24th of November 1962, the order of the Chief Justice dated the 11th of March 1963 and again in my order dated the 10th of April 1963. The hearing was ultimately concluded after arguments of counsel for the parties from the 15th to the 18th of this month (both days inclusive).
4. Most of the time during the last hearing was taken by Mr. Norman Edmunds as counsel for respondent‑plaintiff in support of his objection that the revision applications were not maintainable. Ibis main arguments were that the order of the trial Court dated the 10th of November 1962, against which the revision applications have been made was not a "case decided" within the meaning of section 115 of C. P. C. and that in any event an order by which burden of proof is allocated is not liable to be inferred within exercise of revisional jurisdiction. He relied on Lal Chang Mangal Sain v. Behari Lal Mehar Chand (A I R 1924 Lah. 425), which is a unanimous judgment of five Judges in favour of the first part of his contention and criticised a later judgment of seven Judges in Bibi Gurdevi v. Chaudhri Muhammad Bakhsh (A I R 1943 Lah. 65). I pointed out to him that I was not prepared to go against the majority opinion of the seven Judges in the later ruling. The contention raised by counsel is at present under the consideration of a Bench of seven Judges but after hearing lengthy arguments as one of them, I am not in a position to disagree with the majority view taken in the later ruling. I also pointed out to counsel that there was divergence of opinion as to whether wrong allocation of the burden of proof is such an irregularity as to attract the operation of section 115, C. P. C. or not. There are more than a dozen precedents of various High Courts of India and Pakistan including a recent judgment in Ramesh Chandra v. H. D. Jain College (A I R 1957 Pat. 145), which support the proposition that an error of this nature is of such a grave nature as to deserve interference in revision. As against this view, there is weighty opinion expressed in Santu v. Sohan Lal (A I R 1951 Pepsu 33 (F B)) and Nagori Ibrahim v. Shahji Baburnal (A I R 1954 Rajas. 83) to the contrary. I may mention, as a matter of general interest, that in 1921 Shadi Lal, C. J., who wrote the leading judgment in Lal Chand Mangal Sain's case, interfered in revision with wrong allocation of burden of proof on the ground that it was against the weight of evidence. See Gouda Ram v. Rehana and others (A I R 1921 Lah, 166). The task of construing the language of section 115 of the C. P. C. with the help of judicial precedents bas become so difficult and delicate, owing to the stress that has been laid on its various aspects by learned and conscientious Judges according to their inclinations, that in 1924 Shadi Lal, C.J. made no attempt in Lal Chand Mangal Sain's case to refer to the case‑law. He observed as follows:‑
"The learned Vakils on both sides have invited our attention to numerous decisions in support of their respective contentions, but it would serve no useful purpose to recite them here. It is common ground that the Judicial Authorities are by no means agreed as to the meaning of the word case' and that the various High Courts have expressed divergent views as to the scope of their revisional jurisdiction."
In 1943 Blacker, J., while expressing his opinion in Bibi Gurdevi's case, came to the same conclusion. He mentioned that Bhide, J., had fully set out the case‑law and then observed:
"It seems to me that very little, if any, assistance is to be gathered from these authorities. I think it necessary, therefore, to go back to a critical consideration of the language of the statute itself."
5. On the above consideration, I find it unnecessary to refer to the large number of judicial precedents, which were cited and discussed by Mr. Edmunds and I am further relieved of the generally pervading sense of the need for doing so because Mr. Bashir Ahmad, the learned Advocate for the applicants, relied on some of those judgments of the Privy Council only in which their Lordships have pointed out some of the essentials of section 115, C. P. C. They are set out in T. A. Balakrishna Udayar v. Vasudeva Ayyar (A I R 1917 P C 71) and N. S. Venkatagiri Ayyangar v. The Hindu Religious Endowments Board (PLD 1949 PC26). In Balakrishna's case, their Lordships have explained;
"It will be observed that the section (115, C. P. C ) applied to jurisdiction alone, the irregular exercise, or non‑exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."
In Venkatagiri's case, they have observed that‑
"the section empowers the High Court to satisfy itself upon three matters,
(a) that the order of the Subordinate Court is within its jurisdiction ;
(b) that the case is one in which the Court ought to exercise jurisdiction ; and
(c) that in exercising jurisdiction the "Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of trial which is material in that it may have affected the ultimate decision. If the High Court is satisfied upon these three matters, it has no power to interfere because it differs, however profoundly, from the conclusions of the Subordinate Court upon questions of fact or law."
Counsel for the applicants conceded that these applications did not fall under clauses (a) and (b) of section 115, C. P. C. and took the stand that the trial Court had acted with material irregularity in wrongly allocating the burden of proof and that this error had affected the ultimate decision of the suit inasmuch as the respondent‑plaintiff has become entitled to a decree without producing any proof if weakness is found in the defence of the applicant‑defendants. I endorse the view of counsel to the extent that interference with the trial Court should be made if the terms of clause (c) of section 115, have been violated, but I do not agree with him that interference should be made even if those terms have not been violated merely because the result is going to be that the applicant‑defendants will lose the case owing to their failure to disprove the case of the respondent‑plaintiff. A If the case of the plaintiff is prima facie satisfactory then the trial must begin with an advantage to the plaintiff, though the burden of proof will shift from one side to the other, according to the state of evidence, during the progress of the trial. With this reservation, I proceed to examine the allocation of burden of proof made by the learned trial Court in the seven issues which are the subject‑matter of these revision applications.
6. The issue; were discussed one by one by Mr. Noor‑ul -Arifin from the point of view of Mr. Bashir Ahmed. The learned counsel said that he did not object t o the form of issue No. 1.
7. He criticised the form of issue No. 2 by saying that Mr. Rafique Saigol had been described in letters and telegrams as the Managing Director of defendant No. 1 and that he had signed the document No. 5528 as such but that this was not sufficient either to establish that he had the authority to make the contract or to constitute a representation which could induce that belief. Such a belief, according to counsel, could be easily dispelled if the plaintiff respondent took into consideration the fact that the management of defendant No. 1 had been entrusted, in terms of the Articles of Association of defendant No. 1, to the Managing Agents with whom Mr. Rafique Saigol was in no legal manner connected. Counsel further explained that Mr. Rafique Saigol could neither be the Managing Director of defendant No. 1 nor of its Managing Agents and that he was described as such merely by way of courtesy. I pointed out to him that it was not true to say that Mr. Rafique Saigol was not authorized to perform any function on behalf of defendant No. 1. His reply was that Mr. Rafique Saigol was authorized to carry on negotiations but not to conclude any contract without obtaining the sanction of the defendant No. 1. I may add that he was apparently also authorized to act on behalf of defendant No. 1 for being released from the consequences of signing the document No. 5528. In other words, the applicant- defendants cannot and do not deny that Mr. Rafique Saigol was authorized to perform certain duties but they dispute the scope or the extent of that authority. Without expressing any opinion on this aspect, I hold that if the answer to the issue is as simple as the explanation that has been offered then, the explanation can be placed before the trial Court to get rid of the consequences of the form of the issue without the necessity of invoking the revisional jurisdiction of this Court.
8. Counsel did not criticise issue No. 3 and stated that he did not press the applicants' objections to it.
9. Issue No. 4 and 6 are of the same nature. Mr. Edmunds explained that issue No. 8 refers back to issue No. 4. He said further that even if it did not have such a reference, it would be related to paragraph 18 of the plaint, the contents of which create the same effect as issue No. 4. Mr. Noor‑ul‑Arifin was of the opinion that the form of issue No. 4 was open, to the gravest objection on behalf of the applicant‑defendants and explained the gravity by stating that if the contract was binding on the parties then the goods had to be supplied between January to December of 1960. Therefore, the failure of the applicant- defendants to supply the goods in terms of the contract would amount to a breach of the contract at the end of December 1960 and not at any other time in the year. From this point of view the price lists to which reference is made in issue No. 4 were irrelevant. He contended that the price lists represented the prices at which the goods were offered by the applicant‑defendants but did not represent the market value of the goods in Manchester which price was relevant for calculating the amount of damages, Moreover, the issue restricted the measure of damages to the lists, but under the Explanation to section 73 of the Contract Act the respondent‑plaintiff was bound to satisfy the Court that it had done all that was practicable to remedy the inconvenience that was allegedly caused by the non‑performance of the contract and thus mitigate the damages. These contentions of counsel did not disclose that the form of the issues placed the applicant‑defendants under any handicap ; on the other hand, they constitute a criticism for the benefit of the respondent‑plaintiff. I pointed out to Mr. Edmunds that issue No. 4 and issue No. 6 as explained by him are not issues of fact but of law, and that the result might be that in the event of the respondent‑plaintiff not succeeding on these contentions, it would be unable to take advantage of any other measure of damages. Counsel replied that he was carrying out the instructions of experts on trade and on law, who were directing the trial from England and therefore, in spite of his realization of the delicacy of the situation, he would oppose any amendment of the issues. He said by way of precaution that he would apply for amendment, if necessity arose in the future. It was clear that he was prepared to place his trust in the efficacy of these issues and was not bothered if his application for an amendment was made very late and was opposed on that ground. He is at liberty to choose his own course, but counsel for the applicant‑defendants was not able to point out any ground to be dissatisfied with these issues from the point of view of the interest of his clients.
10. Issue No. 5 was not criticised by counsel for the applicant‑defendants but he said that he was not prepared to state that he would not press his undisclosed objections to that issue. There is no argument, therefore, before me against the form of the issue on the basis of which it may be considered to be revisable.
11. Mr. Raja Muhammad Akram stepped in to criticise issue No. 7. He stated that there was a large number of documents which were of the same nature as the document No. 5528 and that they were treated by the parties as offers and not as concluded contracts. This practice which obtained between the parties should, according to counsel, lead to the conclusion that the document No. 5528 was also an offer and not a contract. This argument of counsel amounted to an explanation as to why the document No. 5528 could not be treated as a concluded contract even if it appeared to be so on the face of it. It is obvious that the argument cannot be taken into consideration unless the practice is established and there after the applicant‑defendants are able to show that they can legally take advantage of such a practice with respect to the effect of the document No. 5528. Until that time the frame of the issue should remain as it is.
12. The above discussion of the issues brings out satis factorily that none of the three learned counsel for the applicant‑defendants had any criticism which could bring their case within the scope of clause (c) of section 115 of the C. P. C. Under that clause, the High Court is entitled to call for the record of the case and to interfere with the decision of a Subordinate Court if such Court appears "to have acted in the exercise of its jurisdiction illegally or with material irregularity". No illegality or material irregularity has been pointed out and there is nothing of jurisdictional character to the entire criticism of the issues.
13. In conclusion of the foregoing the revision applications are dismissed with costs. This conclusion was announced by me at the close of arguments on the 18th of May 1963 and the reasons of that conclusion are contained in the above order.
A. H. Petition dismissed.
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