SUKUMARI GHOSH Vs. GOPI MOHAN GOSWAMI

JUDGEMENT

(1.) This matter comes up for further direction on the Assistant Referee s report. The principal question involyed in it, is one of costs. The defendant had sued the plaintiffs for arrears of salary amounting to Rs. 1,886-12-6 in the Small Cause Court of Calcutta. The plaintiffs then instituted this suit in this Court for account against the defendant. The suit in the Small Cause Court was removed to this Court for trial with this suit. The plaintiffs represent the estate of the late Mr. Lal Mohan Ghose, and it is the common case of the parties that in 1908, the defendant was the manager of the Bairagadi Estate belonging to the deceased. In answer to the claim of the plaintiffs for account, the defendant in his written statements stated that he was not accountable to the plaintiffs nor had he been accountable to the late Mr. Ghose, inasmuch as he had fully explained to the latter all his dealings with the said estate and the management thereof. The plaintiffs admitted the defendant s claim to Rs. 1,886-12-6 as arrears of salary. A preliminary decree was passed for accounts, which were directed to be taken before the Assistant Referee. In the state of facts filed by the defendant, he showed Rs. 44 or thereabouts as balance due to him. The plaintiffs disputed the accuracy of that account and sought to surcharge and falsify the defendant s state of facts and alleged that he had not accounted for various sums received by him as manager, and that he had entered certain fictitious payments in his account. After a prolonged enquiry extending over 60 days or more, the Assistant Referee has reported that the defendant has failed to account for Rs. 716 out of the moneys collected by him as manager of the said Bairagadi Estate. From the report of the Assistant Referee, which stands confirmed. by offluxion of time, it appears that the book most important for the enquiry, viz., the talab-baki, was suppressed by the defendant though he had been called upon to produce it. He had been guilty of suppression of other material documents also. Judging from the Assistant Referee s report, the defendant s conduct deserves the fullest condemnation. His motives have been described by the Assistant Referee as not honest from the outset." The Court s discretion in the matter of costs, as was explained in Sheo Dyal Tewaree v. Judoonath Tewaree 9 W.R. 61 at p. 63 is to be exercised with special reference to all the circumstances of the case, including the conduct of parties. A person who takes up the management of another estate and collects and disburses moneys, has to be ready with his account. His failure to perform the obvious duty, necessitates a suit, and he must pay the plaintiff s costs Collyer v. Dudley (1823) 2 L.J. (O.S.) Ch. 15 : Turn & R. 421 : 37 E.R. 1 63. In the present suit, it is not merely an unreadiness to account that stands to the discredit of the defendant, but he sets up a deliberately false defence that he was not accountable at all, and, when decreed to render account, submitted a false account and suppressed important documents, thereby hampering and prejudicing the enquiry before the Assistant Referee. In view of the bona fide and honest character of the plaintiffs suit and the reprehensible conduct of the defendant, I am clearly of opinion that the plaintiffs should be allowed full costs, including costs of and incidental to the enquiry. The case of Ram Gopaul v. Bhobun Mohun (1864) Coryton s Rep. 126 is in point. There is also a higher authority in Hurrinath Rai v. Krishna Kumar Bakshi 14 C. 147 at p. 159 (P.C.) 13 I.A. 123 : 10 Ind. Jur. 475 : 4 Sar. P.C.J. 751 in which their Lordships of the Privy Council ordered the defendant to pay the costs inasmuch as he had taken the untruthful course of denying his receipts, his fiduciary position and his accountability in toto.

(2.) Mr. S.R. Das, on behalf of the defendant, objects to costs being allowed to the plaintiffs on the ground that the suit for account should have been filed in the Small Cause Court. He maintains that the Assistant Referee having found that only a sum of Rs. 716 had remained unaccounted for, the claim was well within the jurisdiction of the Small Cause Court, and the plaintiffs, having obtained a decree for less than Rs. 1,000 in this Court, are not entitled to any costs under the provisions of Section 22, Presidency Small Cause Courts Act. I cannot accede to this contention, inasmuch as the plaintiffs could institute their suit in the Small Cause Court only if they were in a position to appraise its value within the pecuniary jurisdiction of that Court, which they could not do on the facts of this case. The sum ascertained by the Assistant Referee has been arrived at by an enquiry. I do not think that a suit for account without a claim to a specific sum within the competence of the Small Cause Court, can lie in that Court. But even if it were conceded that this suit was cognisable by the Small Cause Court, I would not hesitate to certify that it was fit to be brought in the High Court.

(3.) For these reasons, I allow full costs on scale No. 2 to the plaintiffs, including reserved costs, if any. The costs will include the enquiry before the Assistant Referee and the Commission at Dacca.