NALINI KUMAR CHAKRABARTTY Vs. GADADHAR CHOUDHURY

JUDGEMENT

(1.) The plaintiffs are zemindars of Kanchanpur, and are proprietors of certain properties mentioned in the plaint. With the consent of all the cosharer proprietors, one Rash Behari Roy was appointed common manager under the provisions of the Bengal Tenancy Act in respect of the said properties in the year 1912. Rash Behari Roy having resigned, one Rai Sahib Monomohan Guha, who was defendant 3, in the suit was appointed common manager by an order passed by the District Judge on 8 May 1916. Defendant 4 Nalini Kumar Chakrabartty was working in the estate from sometime before as a sub-manager. Prior to his resignation, Rai Sahib Monomohan Guha took leave on 16 January 1920 when he was allowed to leave the station on making over charge of his office to defendant 4. In February 1920 notices were issued inviting applications for filling up the vacancy. Defendant 4 carried oh the duties of a common manager On 1 April 1920 the District Judge passed a further order empowering defendant 4 to perform the duties of common manager until further orders. In the meantime Rai Saheb Monomohan Guha tendered his resignation, and on the other hand the proprietors or some of them applied to have the estate released. On 31 May 1920 an order was passed by the District Judge accepting the resignation of Rai Sahib Monomohan Guha with effect from 17th. April 1920, and declaring that the estate was thereby released to the proprietors. Defendant 4 was thus in charge of the office of common manager from 16 January 1920 till 31 May 1920. During the period, on 1 April 1920 the District Judge called upon defendant 4, as common manager, to submit accounts for the years 1325 and 1326. Defendant 4 submitted the accounts of 1325 while he was yet in office. After the estate was. released he submitted some further accounts down to the date of the release.

(2.) Defendant 1 was a Naib appointed by defendant3 while the latter was common manager, and defendant 2 was an assistant to defendant 1. In the accounts submitted by defendant 4 after the release, as aforesaid, two sums of money i.e., as Rs. 6,379.2-5igand Rs. 3,021-10- 2g were shown as being with defendant 1 the former as how lat taken by him and the latter as cash in hand. The accounts were audited and were passed by the District Judge in the usual way. On 30 May 1923 the present suit was instituted against defendants 1 and 2 as principal defendants and defendants 3 and 4 as pro-forma defendants. It is necessary to set out the scope and character of the suit as originally framed in order to appreciate the nature of the controversy with which we are concerned and which is to all intents and purposes a more recent development.

(3.) The plaint, as originally laid, was in its essence, a suit for accounts against, and for recovery of money not accounted for or taken as loan, by defendants 1 and 2. The claim was valued at Rs. 2,100. The gravamen of the charge was against defendants 1 and 2. It was, however alleged that the appointment of defendants 3 and 4 as common manager was illegal and ultra vires, and that it was not known to the plaintiffs whether defendants 1 and 2 had rendered any accounts to defendants 3 and 4, that defendants 3 and 4 had not rendered accounts nor explained the books of the period during which they had acted as common manager to the plaintiffs after the estate had been released, and in the return of the accounts which defendant 4 had filed for the period down to the date of the release of the estate the items of Rs. 6,379 and odd and Es. 3,021 and odd had been shown as already stated above. The reliefs asked for in the plaint are quoted below in extents: (a) For a decree that defendants 1 and 2 be ordered to file correct accounts in Court and to render those accounts. (b) For the appointment of a commissioner to examine the accounts filed by the defendants and for a decree in favour of the plaintiffs after taking proper Court- fees for the amount for which they are held liable and for ordering the amount to be recovered out of the properties secured by defendant 1 by his indemnity bond also out of the sum kept in deposit by defendant 2 and also from the other properties of defendants 1 and 2. (c) For a decree that defendants 1 and 2 be ordered to file all the papers during the period of their services as Naib if they did not file them to defendants 3 and 4 or that defendants 3 and 4 be ordered to file the papers in Court if defendants 1 and 2 gave them those papers. (d) If defendants 3 and 4 state or if it be proved that defendants 1 and 2 have rendered nikash and made over the amounts due from them to defendants 3 and 4 from defendants 1 and 2 then for a decree in favour of plaintiffs and against defendants 3 and 4 for such amount as may be recoverable under the nikash. And (e) For costs with future interest and for any other relief to plaintiffs such as they may be found entitled according to law and equity, The plaint is anything but clear and it is not without considerable difficulty that any foundation of the liability of defendants 3 and 4 can be made out. Putting the construction most favourable to the plaintiffs, all that can be I gathered is that it is defendants 1 and 2? , who are primarily liable; but that defendants 3 and 4 are to be held liable only if they have received any money or papers from defendants 1 and 2, and have withheld the same. Written statements were then filed or behalf of the defendants. In the written, statement which defendant 4 filed he stated that the returns which defendant 1 had submitted of the period of his work were incorrect and incomplete and explanations that he had given of his accounts were unsatisfactory, and that for this reason defendant 4 was obliged to show in the accounts that he submitted to the District Judge the said two items as-being with defendant 1, one as how lat. and the other as cash in his hands. The plaintiffs thereafter applied for amendment of the plaint, and as a result of the amendment that was allowed, the-following two prayers were added: (f) If the principal defendants be not found liable for rendering accounts or if there be any bar to plaintiffs getting a decree for accounts then for a decree in favour of the plaintiffs and against the principal defendants for the amount that may be found due after deducting reasonable-costs from Es. 6079-6-5J pies marked as- loan and Es. 3021-10-2 pies marked as deposit in the hands of defendant 1 after- taking from plaintiffs the proper Court-fees for the same and (g) for passing a decree in favour of plaintiffs and against the pro-forma. defendants for the amount claimed by plaintiffs or for the amount that the-plaintiffs be held entitled to get from the pro-forma defendants as damages-How the question of damages could at all come in the suit upon the facts alleged in the plaint, I confess I have not been-able to appreciate. It would of course-arise on the supposition that defendants-3 and 4 had failed to take the money from defendants 1 and 2 as they were bound to do, but no such case appears to have been made anywhere.