MODI, J. - (1.) THIS is a civil regular second appeal by the plaintiffs Poonamchand and others in a suit for money which was partly decreed by the trial court but on appeal wholly dismissed by the learned District Judge, Balotra.
(2.) THE material facts leading up to this appeal may be shortly stated as follows. THE plaintiffs appellants were assignees from respondents Nos. 2 and 3 Asaram and Sonraj who constituted a joint family firm carrying on business as commission agents in the sale and purchase of bullion at Balotra in the name and style of Sonraj Bhanwarlal. THE case of the plaintiffs was that defendant respondent No. 1 Dhingarmal carried on certain dealings in the sale and purchase of bullion under the commission agency of the firm Sonraj Bhanwarlal from Chait Sudi 14, S 2002 to Baisakh Sudi 10 Smt. 2003 and as a result thereof sustained losses to the tune of Rs. 3511/12/6 including commission and other incidental charges, which were suffered by the firm Sonraj Bhanwarlal on behalf of Dhingarmal. On Falgun Vadi 13 S. 2005, the losses payable by Dhingarmal stood at Rs. 3931/4/6 including Rs. 3511/12/6 principal and Rs. 410/8/- as interest. This debt was assigned by Sonraj Bhawarlal to the plaintiffs on the date last mentioned, that is, on Falgun Vadi 13 S. 2005. It is important to note that it was also alleged by the plaintiffs in paragraph nine of their plaint that in the month of Magh of S. 2004, the debt owing by Dhingarmal to the firm Sonraj Bhanwarlal was settled at a sum of Rs. 2701/-through the mediation of one Nenmal, son of Chhogalal of Jasol. Dhingarmal had agreed to pay the aforesaid amount in cash by Chait Sudi 15, S. 2004, and, therefore, it was alleged that Nenmal had reduced the amount of the debt, and he had also arranged that Asaram on behalf of the firm Sonraj Bhanwarlal should give a letter to defendant Dhingarmal saying that he would accept Rs. 2701/- in final settlement of his account with defendant Dhingarmal and this letter Ex. A was handed over to Nenmal. THE contention of the plaintiffs, however, was that Dhingarmal did not keep up his promise, and, therefore, he was liable to pay the entire amount on the basis of the original transactions. As already stated, the assignment in favour of the plaintiffs came to be made by Asaram and Sonraj on Falgun Vadi 13 S. 2005. Consequently, the plaintiffs prayed for a decree for Rs. 3931/4/6 including principal and interest against defendant respondent Dhingarmal, and, alternatively, they also prayed for a decree against the assignors. The defendants Asaram and Sonraj allowed the suit to proceed ex parte against themselves. Defendant Dhingarmal alone contested the suit. His case was that although he had entered into certain transactions in bullion under the commission agency of the firm Sonraj Bhanwarlal of Balotra, these were of a wagering character, and, therefore, he was not liable to pay any losses incurred in connection with them. He also contested that no losses, whatsoever had been occasioned to the said firm in connection with the transactions entered into by it on his behalf. The further plea which is important for the purposes of the present appeal was that a dispute having arisen between him and the firm, they had appointed Nenmal and Narsinghdas as mediators and that these persons had gone into the entire accounting between the parties and fixed the defendant's liability at Rs. 2701/- and no more. The contention of the defendant, therefore, was that the plaintiff's were not entitled to maintain a suit for the recovery of their alleged losses on the original transactions. The plaintiffs filed a replication in which they reiterated the stand taken by them in their plaint, The trial court decreed the plaintiffs' suit for a sum of Rs. 2701/- only. Aggrieved by this decision, both parties challenged it before the District Judge Balotra, the defendant by an appeal, and the plaintiffs by a cross objection. The learned Judge allowed the defendant's appeal and dismissed the suit as well as the plaintiffs' cross objection. It is in this state of circumstances that the plaintiffs have now come up in second appeal to this Court. It may be pointed out at this stage that the defendant respondent Asaram having died some time in 1955, his name was ordered to be struck off the array of parties. It was further stated that Sonraj was his only legal representative, (Asaram having died without leaving any widow or child of his body and that he was already on the record. It has been strenuously contended by learned counsel for the plaintiffs that the learned District Judge had committed a grave error of law and justice in throwing out plain-tiff's suit altogether in the circumstances of the case. I may state at once that learned counsel rightly conceded that in view of the concurrent finding of courts below, that the liability of the defendant Dhingarmal had been fixed at Rs, 2701/- through the mediation of Nenmal Narsinghdass, he would not press his clients' claim which was put forward in the memorandum of appeal filed in this Court that a decree be passed in their favour for the entire amount of the losses, that is, Rs. 3931/4/6. On the other hand, it was equally strenuously argued by learned counsel for the contesting defendant (and that was the only plea canvassed before this Court on his behalf) that the learned District Judge was perfectly right in throwing out the plaintiff's suit which had been brought on the original cause of action which no longer subsisted and resulted in novation. I have carefully examined these contentions and have come to the conclusion that the plaintiffs' appeal should be allowed to the extent of Rs. 2701/-which was the amount fixed by the mediators as representing the total amount of the losses payable by defendant Dhingarmal and which had been accepted by all the parties concerned. The principal reason which has persuaded me to accept this view as correct is that it was the defendant's own case that a dispute had arisen between him and his commission agents as to the exact amount of the losses which were payable by him, and that the parties had accepted the intervention of Nenmal and Narsinghdass and they had settled the sum of Rs. 2701/-as being payable by Dhingarmal in full satisfaction of his entire account with the said commission agents. I do not see how in common-sense or common justice the defendant can repudiate his liability to pay this amount (at the least) to the plaintiffs. I should also like to mention at this stage that the present is not a case where the plaintiffs had entirely suppressed this aspect of the case. In paragraph nine of their plaint, they had themselves stated that there was a settlement between Dhingarmal and Asaram and Sonraj that the former would pay a sum of Rs. 2701/-in final and full settlement of his account with the latter. Not only that, the plaintiffs also stated that as a result of this settlement, a letter had been executed by Asaram on behalf of the firm in favour of Dhingarmal incorporating this settlement and that that letter had been handed over to the mediator Nenmal. Where perhaps the plaintiffs overshot the mark was when they propounded the case that the contemplation of the parties was that this amount of Rs. 2701/- must be paid by Chait Sudi 15 sec. 2004 in default of which the defendant Dhingarmal would be liable to pay the entire amount of the khata. It is this stand of the plaintiffs which has perhaps served a handle for the contesting defendant to protract this case. Be that as it may, the narrow question for decision is whether in the circumstances mentioned above, it would or would not be right for the Courts to decree the plaintiffs' suit to the extent that it was admitted by the contesting defendant himself. I may again pause here to point out that perhaps it would have been better if the plaintiffs had framed their case in an alternative mode. But even if they did not, it is crystal clear that all the facts which were needed to sustain the alternative framing of the suit are to be found in the plaint. That being so, I am disposed to hold the view that it would be both in consonance with law and the broad principles of justice to give effect to this agreement and hold the defendant liable to the extent that his liability had been fixed at Rs. 2701/- and had been accepted both by him and by the commission agents. In support of the view which I have felt persuaded to take, reference may be made to Firm Sriniwas Ram Vs. Mahabir Prasad (1 ). This was a suit for specific performance of a contract to sell a house. The defendants, second party, who were the owners of the suit house agreed to sell it to the plaintiff. Subsequently they resiled from the agreement and sold the same to the defendants, first party, who purchased it with notice of the contract. The plaintiff had paid a sum of Rs. 30,000/-out of the sale consideration to a creditor of the vendors, as desired by the defendants, second party. The vendors in their turn put the plaintiff in possession of the house and promised to execute a conveyance as soon as they would receive the title deeds from one J and the balance of the sale consideration amounting to Rs. 4000/- would be paid by the plaintiff. The second party defendants did not execute the conveyance, even after they got back their title deeds from J and they went on to sell the house to the defendants first party. Consequently, the plaintiff filed a suit for specific performance of the contract of sale. The defence of the second party defendants was that they had never agreed to sell the house in question to the plaintiff and that what had really happened was that they were in need of money and therefore they approached the plaintiff for a loan and the latter advanced a sum of Rs. 30,000/- to them carrying interest at six percent per annum. It was also alleged that it was entirely for facilitating payment of interest due on this loan that the plaintiff was put in possession of the house. The defendants first party also pleaded that they were bona fide purchasers for value without notice. The Subordinate Judge held that the plaintiff's story of the alleged sale was not established and that the defendants' story was true and in fact the plaintiff had advanced a sum of Rs. 30,000/- to the defendants, second party, by way of a loan. The learned Judge also held that the defendants first party were bona fide purchasers for value without notice. In this view of the matter, the Subordinate Judge dismissed the plaintiff's claim for specific performance but as the second party defendants had admitted that they had taken an advance of Rs. 30,ooo/-from the plaintiff, a money decree was given to the plaintiff for this sum against these defendants with interest at 6 per cent, per annum from the date of the suit till realisation. The plaintiff went in appeal to the High Court at Patna and the second party defendants also filed cross-objections challenging the propriety of the money decree passed against them. The High Court agreed with the Subordinate Judge in holding that the sum of Rs. 30,000/- was advanced by the plaintiff as a loan to the second party defendants (though the evidence as regards the stipulation as to interest was not very clear) and further that the first party defendants were purchasers for value without notice. The High Court further held that the money decree granted against the second party defendants was not warranted in law as no case of a loan was made by the plain-tiff in the plaint and no relief was claimed on that basis and consequently the plaintiff's suit was dismissed in its entirety. The matter was then carried in appeal to the Supreme Court. On the findings of fact set out above, their Lordships refused to reopen them. But what their Lordships pointed out on the other aspect of the case is germane for our present purposes and I cannot do better, with all respect, than to reproduce what their Lordships observed, in their own language: - "as regards the other point, however, we are of the opinion that the decision of the trial court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the Subordinate Judge. It is true that it was no part of the plaintiff's case as made in the plaint that, the sum of Rs. 30,000/- was advanced by way of loan to the defendants second party. But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of a sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the C. P. C. to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The Question, however, arises whether in the absence of any such alternative case in the plaint it is open to the court to give him relief on the basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit. " These observations, in my respectful judgment, apply with full force to the present case. I may further take this opportunity of pointing out that on facts the present case appears to me to be far stronger than the case which was before their Lordships of the Supreme Court inasmuch as although in the case cited, the plaintiff had not ever stated that he had given the sum of Rs. 30,000/- as a loan to the defendants second party, the position in the case before me is that the plaintiffs also averred in their plaint that a settlement had been arrived at between the contesting defendant and his commission agents and that his liability had been fixed at Rs. 2701/-, and that a date had been fixed for the payment of this amount; but what was further claimed by the plaintiffs was that as the defendant had failed to make the payment within the time fixed, that agreement had fallen through. The case of the defendant, on the contrary, was that there was no such condition in the settlement arrived at between the parties concerned and that the defendant's liability could not possibly be fixed at a mark higher than Rs. 2701/ -. It will thus be seen that the case of the parties was common up to a degree,and if in this state of circumstances,the learned District Judge dismissed the plaintiff's suit, I cannot but hold, in the language of their Lordships of the Supreme Court, that he took an undoubtedly rigid and technical view. It needs scarcely be pointed out that, in a case like the present there can be no question of the defendant being taken by surprise or being put to any prejudice by a decree being awarded against him to the extent of the stand adopted by him in his own written statement. As for the defendant's plea of novation, I should like to point out that I am not quite sure that what had resulted between the assignors and the contesting defendant through the intervention of the mediators was the novation of a contract: it was just a settlement of disputed claim at a reduced figure. But even granting that a novation had been brought about between them, I am disposed to hold the view that there can be no reasonable or serious objection to a decree being granted on its basis when the plaintiffs (as already stated) had referred to the settlement in question in their plaint and the defendant himself had accepted it in his written statement and objected to a decree being granted against him on the footing thereof on considerations which are entirely technical and which appear to me to be unacceptable, being devoid of any substance whatever. I hold accordingly. The only other question is whether the plaintiffs are entitled to pendente lite and future interest. I see no valid reason to deprive the plaintiffs of this, having regard to all the circumstances of this case. I would fix the rate at 4 per cent per annum simple. In the result, 1 allow the appeal, set aside the judgment and decree of the learned District Judge and pass a decree for Rs. 2701/- as principal against the defendant respondent Dhingarmal. The plaintiffs will also be entitled to get interest on the aforesaid sum at 4 per cent per annum simple from the date of the suit until the date of realisation. The plaintiffs will also get their proportionals costs throughout. The contesting defendant will bear his own costs. . ;