- (1.) THIS is a second appeal by the plaintiff against the judgment and decree of the District Judge, Balotra, dated the 14th of August, 1952 whereby his claim has been dismissed.
(2.) THE plaintiff had filed the present suit in the court of Naib Hakim, Jalor on 29th of September, 1951. It was averred by him that on Sawan Sud 11 Samvat 1997 the defendant Ramjas agreed to deliver to him one box of rosamine day at Jalor on Bhadwa Vad 2 of the same year and he executed an agreement to this effect in writing. THE plaintiff on his part gave Rs. 250/ - to the defendant as earnest money towards the price of the said goods. It was stated that both the defendants, Murlidhar and Ramjas, were propraetors of the firm Dhirajmal Chunnilal on whose behalf the contract was made, that they failed to deliver the goods, that the defendants were several times asked to deliver those goods but they kept on evading the responsibility, It was further mentioned that the plaintiff suffered a loss of Rs. 50/- on account of the defendants' failure to deliver the goods and, therefore, he brought the suit for recovery of Rs. 300/- THE defendant admitted that there was a contract between them and plaintiff for the delivery of a box of rosamine dye but it was pleaded that according to the agreement, the delivery was to be made at Balotra and it was at a subsequent request of the plaintiff that the goods were sent to Jalor. According to the defendants, they did despatch the consignment of rosamine dye and delivered the railway receipt to the plaintiff at Balotra. According to the defendants, it was the plaintiff who failed to take delivery of the consignment and, therefore, they were not responsible for the loss, if any, occasioned to him. THEy denied that any breach of contract was made on their side. THE trial court decreed the suit on 12th of September 1945. THE defendants went in appeal to the Judicial Superintendent, Mallani, who set aside the decision of the trial court and remanded the case for giving a fresh decision after framing three additional issues. This time the case was heard by the Munsiff, Jalor and the suit was again decreed. THE defendant went in appeal to the District Judge, Balotra who allowed the appeal and dismissed the suit as mentioned above. Learned counsel for the appellant has raised two contentions in the second appeal. In the first place, it has been urged that the order of remand passed by the Judicial Superintendent was not in accordance with law and, therefore, all the evidence produced thereafter should not have been taken into consideration by the courts below. His next contention is that the appellate court's finding about the delivery of the railway receipt by the defendants to the plaintiff is incorrect. The first point for determination, therefore, is whether the order of remand passed by the Judicial Superintendent was illegal and, therefore, all the evidence produced thereafter should be excluded from consideration. It would be proper to reproduce here the three issues which were framed by the trial court and the issues which were latter on framed by the first appellate court The three issues framed by the trial court were as follows - (1) Whether the defendant entered into an agreement with the plaintiff to deliver him a Peti of Banjara dye on Bhado Badi 2 Svt. 1998? P. (2) Whether the plaintiff had suffered a loss of Rs. 50/- as the delivery of the goods was not made at Jalore according to the agreement and whether the plaintiff was entitled to get back the evidence of Rs. 250/ -. P. (3) Whether the suit was triable by the Court? (Hakim Jalore ). The issues which were framed by the appellate court were these: - (1) Whether the defendant had booked one case of rosamine dye to Jalore for the plaintiff on Bhado Badi 14 of 1998? D (2) Whether the railway receipt was delivered to the plaintiff and -/5/9 recovered from him as costs of obtaining the railway receipt? P. (3) Whether the defendant is liable to return the advance of Rs. 250/- and pay damages amounting to Rs. 50/- to the plaintiff? It is clear that the defendants had admitted that they had despatched the consignment of rosamine dye to Jalore, that the railway receipt was also delivered to the plaintiff and, therefore, they were not liable for damages In the three issues which were first framed by the trial court, no issue was case for the defendants to prove the stand which they had taken. It is urged by learned counsel for the appellant that the defendants-respondents could lead their evidence in rebuttal of issue No. 2 which was framed in the beginning. It is true that if the defendants had so desired, they could produce such evidence, but they were not bound to do so because there was no issue where by they were called upon to prove the despatch of the consignment and the delivery of the railway receipt. The appellate court cannot be said to have committed an illegality in drafting additional issues which clarified the position and called upon the defendants to prove what they were required to do. To my mind, it cannot be said that the first appellate court had committed any illegality which vitiated its remand order or on account of which the evidence produced by both the parties thereafter should be discarded altogether. It may be further pointed out that the plaintiff appeared to have made no objection at that time when the remand order was made and additional issues were framed. He did not approach the higher court for setting aside that order in time. On the other hand, it appears that when the case went back to the trial court, the plaintiff's counsel presented an application for realising the costs which were awarded to the plaintiff by the first appellate court. It is clear from the record that the remand other was made on the condition that the defendants would pay Rs. 25/- to the plaintiff. The plaintiff has received that money from the court by making an application and this means that he had no objection left thereafter. It also appears that the plaintiff cross-examined the witness which were produced by the defendants and the plaintiff also produced his own evidence. Under the circumstance, it does not lie in the mouth of the plaintiff now to say that all this evidence should be discarded. Learned counsel for the appellant has referred to the case of Rampat Sahu vs. Bhajju Sahu (l ). In that case it was observed that - "appellate courts have inherent power of remand given them by the Code, but the Courts, as has been pointed out more than once, should be slow to exercise that jurisdiction and should only use it in appropriate cases. The power of remand is not intended to allow an unsuccessful plaintiff, who had failed to prove his cause of action to have another attempt and call witnesses whom he might have called on the first occasion. " I respectfully agree with the view that the appellate courts should not use their inherent power of remand just to give to a party, who has had an opportunity to lead its evidence, another chance only by way of indigence. These observations, however, do not apply to the present case In the case cited above, the appellate court had come to a definite conclusion that the plaintiff had not been able to prove his case and still it give an order of remand to give another opportunity to the plaintiff. In the present case, the Judicial Superintendent had not remanded the case just to give another opportunity to the defendants to produce their evidence. It was realised by him that proper issues were not framed and the defendants were never called upon to produce evidence to the effect that they had despatched the consignment and delivered the railway receipt to the plaintiff. The trial court had framed no issue whose burden was cast on the defendants and under the circumstances it framed additional issues and remanded the case. It cannot be said that the first appellate court had only tried to show indulgence to the defendants. Learn-ed counsel has next referred to the case of Hemsingh vs. Motisingh (5 ). In that case the order of remand was set aside by this Court, but the facts of that case were very different. In that case, the lower court had framed issue on a point which was not even raised by the plaintiffs in their suit and the appellate court had therefore acted with material irregularity in the exercise of its jurisdiction by making out for the plaintiffs a new case altogether. In the present case, the additional issues framed by the first appellate court were based on the pleas which were raised by the defendants in their written-statement and therefore, there is no question of the first appellate court making out a new case for the defendants. Learned counsel has lastly referred to Badhava Singh vs. Charan Singh (3) In that case, it was held that - "where an issue is not framed, in the proper form and the burden is wrongly cast, but if the affected party accepts the burden without any demur or objection throughout the trial and leads all the evidence relevant to the point and is not misled by the manner in which it was cast, the appellate court need not remand the case for retrial after framing the proper issue. " It may be observed that this case is also of no help to the appellant because the defendants had certainly made an application in the trial court that the issues were not correctly framed and the first appellate court realised that the defendants were misled by the absence of issues and they thought that they were not required to prove the points which they had raised. Thus the cases cited by learned counsel for the appellant are not applicable to the facts and circumstances of the present case and, therefore, the evidence produced by the parties after the remand, cannot be thrown out on the mere basis that it was produced after the order of remand. The next question for consideration is whether the railway receipt of the consignment was delivered by the respondents to the plaintiff-appellant. It has been found proved by both the courts below that the defendants did despatch a box containing rosamine dye to Jalore on or about Bhadwa Vad 4 Svt. 1948. It is also established beyond doubt that the said consignment had actually reached Jalore railway station and its delivery was not taken either by the plaintiff or by the defendants. This is clear from the notification dated the 2nd of December, 1942 made by the Controller of Stores, Jodhpur Railway, Jodhpur and published in the Jodhpur Government Gazette dated the 5th of December, 1942 on pages 328 andi59. In that notification, this consignment was show as unclaimed property. It was also mentioned that it contained 50 small tins of rosamine dye weighing about one md. , that it was despatched from Balotra to Jalor by Invoice No. 44, Railway Receipt No. 513870 of 11-8-1941. The Railway Receipt No. 513870 dated 11 8-1941 is also mentioned in the reply, Ex. P. 2, which was sent by the defendants in reply to the plaintiffs' notice There is, therefore, absolutely no doubt about the fact that the defendants had despatched a consignment of rosamine dye from Balotra to Jalor, that it also reached Jalor and its delivery was not taken by either party. According to the plaintiff, this consignment was sent by the defendants in their own name and, therefore, the plaintiff could not take its delivery without the railway receipt. The defendants' case is that they handed over the railway receipt to the plaintiff himself on Bhadva Vad 6 when he came to Balotra, that -/5/9 were also obtained from the plaintiff for Bilti Kharch and that amount was entered in their account-books on the same day. It may be mentioned here that according to the plaintiff, the delivery of the goods was to be given on Bhadva Vad 2, while the consignment according to the courts below was despatched from Balotra on Bhadva Vad 4. An argument was raised by the appellant's learned counsel that the defendants had failed to give the delivery on the due date, but that argument is fit to be summarily dismissed because it is clear that the date of delivery in the present case was not of the essence of contract. In the first place, the letter 2 of Bhadva Vad 5 mentioned in Ex. P. 1 has been tempered by somebody and secondly it appears from the plaint itself that the plaintiff himself did not consider the date of delivery as the essence of the contract because he says that the defendants were several times asked to give the delivery of the goods, but they only gave evasive replies. If time were of the essence of the contract, it was not at ail necessary for the plaintiff to ask the defendants to give the delivery of the goods when they had failed to give the delivery on the due date. The crux of the whole case, therefore, is whether the defendants had handed over the railway receipt to the plaintiff and whether it was the plaintiff or the defendants who were at fault in not taking delivery of goods at Jalor. If the plaintiff had not received the railway receipt, then he could not take the delivery because the consignment was not in his name. If on the other hand, the defendants had handed over the railway receipt to the plaintiff after making a proper endorsement in his favour, then it was for the plaintiff to take the delivery. The trial court has come to the conclusion that the railway receipt was not handed over by the defendants to the plaintiff, while the first appellate court has arrived at the conclusion that the defendants did deliver the railway receipt to the plaintiff and he himself is to blame for not taking the delivery. The question whether the railway receipt was delivered by the defendant to the plaintiff is one of fact and strictly speaking no second appeal on that finding lies to this Court. Learned counsel for the appellant has, however, urged that the first appellate court ought not to have disturbed the decision of the trial court because the original court had the advantage of observing the demeanour of witnesses who had appeared before it and, therefore, it was the better judge of their veracity. In support of his contention, he has referred to the case of Sarju Pershad Ramdeo Sahu vs. Jwaleshwari Partap Narain Singh (4 ). In that case, it was observed that "the appellate court has got to bear in mind that it has not the advantage which the trial Judge had in having the witnesses before him and of observing the manner in which they deposed in court. " It way be pointed out that their Lordships have observed at the same time that - "this certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. The rule is and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of the witnesses, then unless there is some special feature about the evidence of a particular witness with has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lies, the appellate court should not interfere with the finding of the trial Judge on a question of fact. " It is, therefore, very clear that the appellate court is not precluded from reversing the finding of fact arrived at by the trial court on the same evidence. But the appellate court should have proper regard for the finding of the trial court. The trial court has better chances of studying the demeanour of witnesses before it and, therefore, it can be the better Judge about their credibility. Unless it appears to the appellate court that the trial court has missed some special feature about the evidence of a particular witness or that its opinion about the credibility of the witness is palpably wrong, the appellate court should not interfere as an ordinary rule. In the present case, the trial court thought that the defendants' evidence about the delivery of the railway receipt was not reliable because they had not obtained a receipt in writing from the plaintiff and also because the entry in the account books of the defendants was not proved according to sec. 34 of the Indian Evidence Act. The first appellate court has remarked that the trial court failed to notice the fact that the plaintiff had called the defendant himself as his witness and when the defendant Ramjas stated on oath that he delivered the railway receipt to the plaintiff personally, then the plaintiff was bound by his evidence. It is true that the trial court did not take this matter into consideration The first appellate court has referred to Mahunt Shatrugan Das vs. Bawa Sham Das (5) in which it was observed by their Lordships that the practice of calling the defendant as a witness to give evidence on behalf of the plaintiff is condensable, but if the plaintiff treats the defendant as a witness of truth, then his testimony cannot be discharged. It has been further pointed out by the first appellate court that the defendant's bahis were regularly kept and the entry therein regarding the delivery of the railway receipt and realization of -/5/9 for bilti kharch supported the defendant's statement. Thus it appears that the first appellate court has noticed two special features which were not taken into consideration by the trial court namely, that the plaintiff had called the defendant himself as his witness and that the dependents' books of account were regularly kept. The trial court's remark about sec. 34 of the Evidence Act was not correct because the defendants were not bringing any suit against the plaintiff and were not going to charge him with any liability. Thus it cannot be said that the first appellate court had no good reasons to reverse the finding of fact arrived at by the trial court. Learned counsel for the respondents has further drawn the attention of this Court to the fact that the moment the plaintiff gave a notice to the defendants, they sent to him a reply that the railway receipt No. 513870 dated 11-8-1941 was handed over to him personally on Bhadwa Vad 6 at Balotra but the plaintiff did not send any letter to the defendants saying that he had not received any such railway receipt. I think there is much force in this contention. It certainly appears from Ex. P. 2 produced by the himself plaintiff that on 16-8-1941 the defendants had clearly told him that Railway Receipt No. 513870 dated 11-8-1941 was handed over to him personally at Balotra and thereafter he should have at once informed the defendants that he had not received any such railway receipt. The consignment was laying at Jolore and the plaintiff who was a resident of that place could take its delivery or if the railway receipt was lost by him, he should have asked the defendants to take the delivery and hand over the goods to him. It appears that the plaintiff really did not want to take the delivery of the goods and he only wanted his money to be returned. A clue about the real dispute between the parties has been given by D. W. 1 Kaluram Agarwal. He has stated that there was a quarrel between both the parties in his presence. The plaintiff was telling the defendants that the goods sent by them were spoiled because of rains, that the did not want to take the delivery because the railway receipt was not sent in time and he was trying to return the railway receipt to the defendants. The defendants, on the other hand, were not prepared to take the railway receipt back. The witness suggested to both the parties that they should divide the losses half and half, but they did not accept his suggestion and, therefore, he left them quarrelling. The story given by this witness seems to be correct. The appellate court does not seem to be wrong in arriving at the conclusion that the railway receipt was received by the plaintiff. It seems that he did not like to take the delivery because he thought that the goods were damaged. If the plaintiff thought that the goods were damaged on account of some negligence of the part of the defendants, then he should have frankly come out with that case; He has, however, concealed the real facts. He did not mention in the plaint that the goods despatched by the defendants were not sent in time or that they were damaged. The language of the plaint shows as if the defendant never despatched the goods to him and as if he was quite ignorant about the consignment even though he was definitely informed by the defendants by their reply Ex. P. 2. Learned advocate has not been able to show what interest the defendants could have in withholding the railway receipt when they had despatched the goods to the plaintiff. I do not see good grounds to interfere with the finding arrived at by the first appellate court. The appeal is therefore dismissed with costs. . ;