- (1.) THIS is an appeal by Mangilal against the judgment and decree of the District Court of Dungarpur.
(2.) THE suit, out of which this second appeal has arisen, was brought by Hetlal, adoptive father of Mangilal. THE case of Hetlal was that there were certain transactions between him and Laxman defendant. Accounts were settled on Pos Badi 10th, Svt. 2002, and it was found that Rs. 3500/- were due from the defendant to the plaintiff. THEreupon, the defendant signed the account and under took to pay the balance due, namely Rs. 3500/- along with interest at -/10/- per cent per month. THEreafter the defendant paid Rs. 607/-on various dates. THE present suit was filed for Rs. 3,460/- which was the amount due including interest up to the date of suit, and the plaintiff prayed for a decree of this amount plus interest at the contractual rate from the date of the suit. The defendant raised only one defence, namely that the transaction was of a wagering nature, and therefore the court could not pass any decree in favour of the plaintiff. Only one issue was framed by the trial court, and though the language was quaint, it is clear that it was about the wagering nature of the transactions, and the burden of proof was put on the defendant. The trial court decided the issue against the defendant, and decreed the suit, though on one question of fact it was grievously in error in holding that cash had been paid by the plaintiff to the defendant. On appeal to the District Judge, that court came to the conclusion that the transactions were of a wagering nature, and therefore, allowed the appeal, and dismissed the suit. Hence this Second appeal. The only question for determination before us therefore is whether on the evidence in this case, it has been proved that the transactions were of a wagering nature. The principles as to wagering transactions are wellknown, and it is not necessary for us to cite cases here in that connection. It would be enough to refer to Prabhudayal vs. Shankar Ram (1) (1953 RLW, 110.) where a learned single Judge of this Court has collected the various authorities on the point. It is well settled that the essence of a wagering contract is that at the time the contract was entered into, it was upon the terms that performance of the contract would not be demanded, and that differences only would become payable. The question, that we have therefore to answer, is whether the transactions, with which we are concerned in this case, are of this nature, and therefore the plaintiff is not entitled to a decree. Learned counsel for the appellant has laid stress on the fact that the defendant has not appeared as a witness in support of his plea. That is undoubtedly so, and we do think that, in cases of this nature, it is duty of the defendant to appear in support of the case that he puts forward. At the same time, the mere fact that the defendant has not appeared is not enough to dismiss the case put forward by him if, on the evidence on the record and the circumstances, the court is satisfied that the transactions were of a wagering nature. It may be pointed out that the plaintiff also has not appeared in the witness-box, as he was dead by the time the plaintiff's evidence began. However let us look at the evidence that is available. We find that the transactions in question were with respect to large quantities of gold and silver. We find that the defendant is a hotel-keeper in Sagwara. There is no direct evidence on one side or the other as to the financial status of the defendant; but Sagwara is a small township with hardly a few thousand inhabitants, and one can imagine the status of a hotel-keeper in such a place. We find further that Mangilal appellant, who was examined as a witness by the defendant to prove the various accounts that were given to the defendant, admitted that not in a single instance was delivery made of the gold or silver, out of the 40 or 50 transactions which are to be found in Exs. D 1 and D-2. These 40 or 50 transactions took place within a space of a few months, and were entered into by a person who was not a dealer in gold and silver. If these were genuine transactions, it is difficult to understand why a man like the defendant required all this quantity of gold and silver within the period of a few months. Taking all these circumstances into consideration, the inference, to our mind, is irresistible that these were merely gambling bets by the defendant, and he hoped to make money out of them, though actually he did not. In these circumstances, even though the defendant has not appeared in the witness-box, the inference, to our mind, is clear that there was never an intention on the part of the parties to make delivery of the goods, and that the intention always was to settle the account on the due date by paying up or receiving differences. Learned counsel for the appellant has drawn our attention to one circumstance, and to two statements in support of the case that these were not wagering transactions. He has first pointed out that the accounts filed by the defendant himself show that the appellant was charging brokerage. From this he wants us to infer that he could not be the principal, and that he was merely a commission agent in this matter. He has also referred to the statement of Mangilal that the amount due, namely Rs. 3500/-, was paid to some undisclosed principals in Bombay. Lastly, he has referred to the statement of Gordhandas P. W. to the effect that Laxman could take delivery if he so desired. The fact that Arhat or commission is entered in these accounts is by itself no proof that the appellant was only a commission agent and not a principal for it is possible for a principal to charge Arhat as well as to account for profit or loss. Further, we are not prepared to believe the mere oral statement of Mangilal to the effect that the amount of Rs. 3,500/- was paid to some undisclosed principals in Bombay. Nor are we prepared to accept the oral statement of Gordhandas that the plaintiff used to place orders with some firms in Bombay. The lower appellate court had given the appellant opportunity to satisfy him by producing the account books that he was merely a commission agent, and the in fact he had paid up to some principal in Bombay, but advantage of that opportunity was not taken. The appellant is a business man and keeps accounts, and we do not see why, if it was a fact that the appel-lant was merely a commission agent and was placing orders with some undisclosed principal in Bombay and was making payment on behalf of the defendant to that principal, he did not produce account books in support of that. Learned counsel in this connection relies on Ismail Labbe Marikar Ebrahim Labbe Marikar vs. Barleet & Co. (1) (A. I. R. 1942 P. C. 19. ). In that case, it was held that where the documents show an ordinary commercial transaction, and in conformity with them one of the parties incurs personal obligations on a genuine transaction with third parties so that he himself is not a winner or loser by the alteration of price, but can only benefit by his commission, the inference of betting is irresistibly destroyed. This case would have applied if the appellant had proved to our satisfaction that he had entered into genuine transactions with third parties, and that he himself was neither a winner or loser by the alteration of the price, and that his sole interest was only in the commission. We have already pointed out why we are not prepared to hold, in spite of the oral evidence that has been led, that there were any genuine transactions with any third party at Bombay in connection with these transactions between the plaintiff and the defendant. In support of the view that we have taken, we may refer to Doshi Talakshi vs. Shah Ujamsi Velsi (1) (I. L. R. XXIV 227. ). In that case, the transactions were through written agreements, and the printed forms prevailed for the delivery of cotton in every case and forbade all gambling in differences. But the court held that this was a mere facade and that the reality was something different. It was found that in spite of these rules and the express terms of the contracts, the course of dealing was such that none of the contracts were ever completed except by payment of differences between the contract price and the market price in Bombay on the Vaida day. The plaintiff in that case had entered into numerous transactions of this kind on the defendants' behalf, and sued to recover from them the balance due to him on account of brokerage, commission and losses incurred in the said transactions. It was held in spite of the documentary evidence available that the contracts were of a wagering nature. We are in respectful agreement with the view taken in this case, and hold, on the circumstances before us which are almost exactly similar, that the transactions in this case were of a wagering nature. Under these circumstances, the lower appellate court was right in allowing the appeal and dismissing the suit. We hereby dismiss this second appeal, but, in view of the fact that the defendant did not appear in the witness-box, we deprive him of costs of this Court. Costs of the court below will be borne as ordered by the lower appellate court. .;