- (1.) The suit out of which this appeal arises was instituted by the plaintiff-respondents in the Court of the District judge of Umaria, for recovery of Rs. 34,000 principal, and Rs. 2,626 interest, due on foot of mutual dealings. The suit was dismissed by the District Judge but was decreed on appeal by the Judicial Commissioner of Vindhya Pradesh. A certificate for leave to appeal to this Court was granted as the case fulfilled all the conditions and requirements in force relating to appeals to the Supreme Court.
(2.) The defendants did not admit the claim and it was pleaded that no accounts were explained to them when the signatures of Bhaiyalal and Hiralal were obtained in the plaintiff's ledger on 3-9-1949 acknowledging the suit amount as due from them. It was further pleaded that no suit could be based merely on an acknowledgment of the debt. In para. 4 of the written statement it was alleged that plaintiff 2 Dipchand having threatened to bring a suit against defendants 1 and 2 whose financial position was bad and having represented that plaintiff 1 Badkulal would be angry and abuse plaintiff 2 and having assured on oath by placing his hand on a deity in a temple that no suit shall be brought and that amount of interest would be reduced, asked defendants 1 and 2 to sign the khata, who signed the same with outgoing through the accounts, on the faith of these statements made by Dipchand and that the defendants were not bound by these signatures. In para, 9 of the written statement, it was alleged that in fact Rs. 15,000 or 16,000 as principal sum were due to plaintiffs from defendants but the suit had been filed for a much larger sum than due. Issue 1 framed by the District judge was in these terms: "Did the defendants Hiralal and Bhaiyalal sign on Bhadon Sudi 11 Samvat 2006 in the capacity of manager and head of the family, in the khata of the plaintiffs after understanding the debit and credit accounts and accepting Rs. 34,000 as the correct balance due to the plaintiffs." It would have been more correct had a separate issue been framed on the two points compositely mentioned in this issue. Be that as it may the form in which the issue framed is not material for the decision of the appeal. Issue 7 was in these terms: "Did the plaintiff Dipchand obtain the signatures of defendants 1 and 2, in their bahi under the threat of instituting a suit and giving the assurance of the suit being not filed and leaving the interest which is incorrect and very much exaggerated, by saying that Badkulal shall be very angry with him.... . .... . . . . . . " The frame of the issue shows that the learned Judges at this stage made no effort to ascertain or apprehend the nature of the plea taken in the written statement. He seems to have acted more as an automaton than as a Judge in the discharge of his responsible duties. Before framing an issue like this, it was his duty to examine the parties and to find out the precise nature of the plea involved within these facts: in other words, whether the defendants wished to plead in defence fraud, coercion, undue influence or a mistake of fact entitling them to reopen the accounts. Mr. Bindra for the appellants was unable to tell us what real plea was involved in the facts stated under this issue.
(3.) The manner in which the learned Judge dealt with this issue lends support to our view that he did not at all apprehend what he had to decide. It was held that the defendants did not sign the entry after understanding, settling and adjusting of the accounts, but that plaintiff Dipchand obtained their signatures without explaining the accounts to them.;