Dwarka Doss v. Baboo Jankee Doss (India)

D V A R R I DOSS 2). BlBOO JANKEE UOLJ [la551 V I MOORE IND. APP, 89

[a] DKhRID IISKEE DOSS,--Rrspvndeat*

[Feb 6, i , lSj].

i e t d , bur crimmed no 4itr.esm to rebut the Plainriff

rued by U r . Leith and Mr Fulton for the Appellsnr, end Y r

oiidned to the question of che suaioieuoy of the evidence

Xr. Field, f i r the Respondent.

The Right Hon. T. Pmberton Leigh (Fob. 10, IP55).--In thxs cam. an aotian UB.

ellant agamrt t l ~ e Respondent to I - L I L O C ~ ~ the alleged balalice '

rvidonue w&8 girm on the psrt of the Paintiff. No evide

011 tile part of the Defendant: and the a& question nbirh th

P,inl>t Hen. T. Pcniberto:i high, the Right Hon Lord Just

R i d t Hon. Sir Cdn-ard Ryan, and tlrr Right Huo. Lord Jurt

.. __ ~ ~-

P c. v,,: 3 3 2

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DWARK-1 IXIES 8. BA800 SANKEE DOSS [1BC5] V I MDORE lpiD APP., 9s

joinder ought to have been f i l d bnving elapsed, on the 27th of June, 1850, isaues

betwen the pnirres were settled by the Judge. T h m a irsusa i'em ill( ! d l o w ~ -

" In thia auit Plaintiff should produce the dav-book and jouriiel, and show eiidense

t o pro3'e tho bnlanae in his favour, and slao &bstantiatc !he award of tbe arbitrator

resp-ting the item of Rs. 4000 mentioned i t the p&;m of plamt, end should elm

nlivli -vis pninounoed about B week Gfteinards, that m defiault si sppearance on

tile part of the Defendant tha Inspector should proreed [94] e= w t e . Hersiipon

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ments eontcinsd i n that xepor:. Xv " I'efLmtmn,l. hoserer (a8 IL LS cdled). of that

reparr w*> filed bv rhe Rrrpordcnt Rut, 011 the 9tt of September l 8 B O he

iIreamted a petition p r spng to be ut liberty then to go into erideice for' the

purpose of lrfuiing that ieyurt, and he %as told that 88 lung as the <.me remained

open until the record rind c!oeed, it v & d porfeorly ooiupateot tu h im to go into

syideiice. In point oi fae:, at leait t a o montlls had

elapsed, bffare the matter CQEX or. for hearing, but not one particle of eridenre ne.8

produced during that pe*'iOd on the p m t if the Respondent in "rrfui&on ' (ne he

calls i t ) of this report. The other cndenoe produced b r Ihe Appallaut i n the action

-23 r h k He produced the iiaaTd r h i c t . had been &de, nud ho

exmmir&1:0n of the r ib i r rn tor w h o had mada thar award, the aubmiss

not denied), and rhe fact that he had made that award after B caref

not macy of all the dacunienta in tire po~session of the Appellant, hut of t t e I&

and books in the possemion of 1961 the Respondent. and that 110 mme to the con.

clue;on thac tI.9 )ten> of Rr. 4811 had been properly cherged b s tbr Appellant to the

deut . a=d rliat nith respect tu the irem of Rs. 1500 tLa% iielonpd to another

t, and 7 8 s not included in the Bemrea account He proved tur:hel rhat this

, of vliich ihe Respondent affected to know nothing, had bten wtually siened

m t l ie ~resence of the Respondent'* agent, ihst one copp had been drlirered tt the

Appellant. and the other oopp had besn dalirrered to a permn w l c d Gaoundiiur

Doss, for the purpoae of brmg handed over TO :he Respondent. The fno t of thia

a n w d being made, and made under the cii.cuiiiatance8 I nave Mated, ve.8 confimmed

by t h evidenca oi ~ n 0 1 l ~ e r person, n witness nho -88 present. U;ld i l lto speaks to

f l i o s ~ iarta. The .kppel:anr vent furl er into endanre for the purpose oi pronng

the v ~ i i o u s admrsrians alleged to hare bean made bp the Reqmndtnt b r a.lich as

it was xated. he lmd eocsenied to pi:? &e iidance of the B C C O U T ~ . p&idad h i s

particular item of Rr &U00 were deducted. Four or five r i t i ieese r e r e prodwed

for the purpose of establisliing lhore allegationa.

Tne evidenae upon t t .m admirsioiia XBB diaiected nith c o ~ i ~ ~ i m m a t e bility by

Mr Field. an behalf of rhs Reapondent. Tlie Judge ~ i i lhe Zillel~ Court due8 .lot

appear to hare placed much reliance upon thoeo xitnosses, and the Judges of tne

Soperior Court i e i e of opinion that considering the uihges nnd hnbita of India,

i t TU entirelp incredible that suoh conversations could hare taker, place And

He had aiktd for tliree veoka.

He p v e s his opinion a& t o the weig'lt CO he ittributed 10 each distinct p o r ~ ~ ~ r i of t e

ewdenee, and he comes to the ronclusmn, tha t in the absenoe a i all ewdenca on the

part of The Defendant (ulio produced no evidence rhatewr) , there vas suificient

t o BLititlr the Plaintiff to the judzrneni which he olaimed Lnd, naco:dinglp. jud:

menr, %as pronounced in h i s i a w w for the amount of the debt, 3,ith cmffi.

Or tlie 301i1 af December, 1850, the Respondent prescntd 7r petition for D

i ~ e i i e ~ of That. judgment, and the first para~raph in the petition far r e ~ ~ e a ~trongly

the view which their 1 urdriipu lake oi rhis oam. name:?, that the real

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!haw proceeded upon three grounds. First, hi the B C C O U ~ S h&d not barn h a t i e

factorily made wt. Secondly, that t h e w a r d W * B riot suffioienily proved, aud it

But the question is, nhether havina raeard 10 lhe i a v w wined bttweeii t i m e w.itie8,

whrticr, having regard to thasa oimumatanoos, the ncLcssity of thsi strict proof wtid

m t remoaed, and h h s h e r i t i s poiiible fox the Court to hold that any douht c m

exist as to the genuineness oi those accounta, or as to the aceurecy of those eccounte,

eioepring i n the par-[99]tiuulars to which objcutioirs have been speoifionily made,

aud uihiah obpciionn Itad been distimtly, and in our opinion properly, axetiuled.

their Lordships B W of opinion, that vhat had taken pleee was irbundaxly

f i r r~moi r the objection on the gmmd of the abrenoe of that s t n r t proof.

I t appear8 rhat sitneiieil, to nfford that proof, had been tmdercd for eiair.ination,

that a ~nriimiition iasued at Calouttr. for d ie p u r p e , and that chat commiswn lied

been rrrurned nithaut m p wideme being take2 under it. It is alleged that it

isppeusd !n mi\take Of course, therefoie, n-e do not

ac ill1 foiiib our judgment upon that. But hariug regard to the fact that the

genuioeness of rhoac books was not disputed when they were &red to the Inqxctoi ,

and that tlieii a c e u i v ~ y \,-a8 not disputed by the Respondent's agent, xho at:ondad

exa~iimc them, but that, on the oontrary. their gensral aeoiraoy was sdmirted;

a t the wcoiinti. contained IU rhohe h o k a lmd been for raue~al months open t u rhe

spertion of the Respondent, vith power to him to point o l t an? inaccuracies, If any

aceuraeies existed, a n d that he had in his own po~~ession xrieaii~ at an7 niomunt

diiproring the accursoy of tilose books id inaeourste they were) by the pmduction

ot his owu ac~ountz, books, and roucber*, their Lordships ere of opinion that rhere

There IS no proof of th8.t.