TMI Blog1999 (3) TMI 653X X X X Extracts X X X X X X X X Extracts X X X X ..... ather (defendant No.2) to operate the account continued and taking advantage of this authority, defendant (respondent) No.2, on the persuasion of the appellant, issued a cheque for ₹ 7,000/- on the current account of respondent No.1 on 29.4.1964 which was encashed by the appellant. This amount was not paid back by the appellant in spite of repeated demands and, therefore, the suit was filed both against the appellant as also respondent No.2 who had issued the cheque to the appellant. The appellant, in his written statement, pleaded that there was no relationship of debtor and creditor with respondent No.1 as the amount was advanced personally by defendant (respondent) No.2 and, therefore, respondent No.1 had no right to institute a suit against him specially when respondent No.2 while advancing the money to him had not acted as agent of respondent No.1. The appellant also raised the plea of Section 8 of the Orissa Money Lenders Act and contended that since respondent No.1 was not a registered money lender on the date on which the amount of ₹ 7,000/- was advanced to him as loan, the suit was not maintainable as the amount was advanced in the course of regular money le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt had already decreed the suit. It is contended that though the decree was passed only against respondent No.2 and not against the appellant, it was wholly in consonance with the prayer made by respondent No.1 himself in his plaint in which he had claimed a decree either against the present appellant or against respondent No.2. Since the suit was decreed against respondent No.2, there was no occasion to file an appeal against that decree in the High Court. Para 9 of the plaint, a copy of which was placed before us, reads as under:- 9. Plaintiff prays for a decree of ₹ 8,400/- with costs of suit against both the defendants, to be realised - severally from either of the defendants, with interest pendentilite and future at the rate of 7 PC. per annum. The relief clause of the plaint extracted above would show that respondent No.1 had claimed a decree for a sum of ₹ 8,400/- against both the defendants so that it could be realised from both the defendants or from either of them. This was a legitimate and reasonable prayer. Since defendant (respondent) No.2 had advanced the amount in question to the appellant on the account of respondent No.1, both of them, name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the aggregate subject-matters at the date of instituting the suit. These two provisions, namely, Order 1 Rule 3 and Order 2 Rule 3 if read together indicate that the question of joinder of parties also involves the joinder of causes of action. The simple principle is that a person is made a party in a suit because there is a cause of action against him and when causes of action are joined, the parties are also joined. Now, the respondent No.1 in his plaint had pleaded that from his current account in a bank which was authorised to be operated by his father, namely, respondent No.2 also, an amount of ₹ 7,000/- was lent by a cheque to the appellant. Since the money had reached in the hands of the appellant, though not directly through respondent No.1 but via his father, he had a cause of action against both the defendants, namely, the appellant and respondent No.2 both of whom were, therefore, impleaded as defendants in the suit particularly as it was one transaction in which both were involved. In this situation, therefore, if the suit was dismissed against one of them by the trial court, respondent No.1 had the right to file an appeal against the person against whom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Notice has frequently been taken by this Board of this style of procedure. It sometimes takes the form of a manoeuvre under which counsel does not call his own client, who is an essential witness, but endeavours to force the other party to call him, and so suffer the discomfiture of having him treated as his, the other party's, own witness. This is thought to be clever, but it is a bad and degrading practice. Lord Atkinson dealt with the subject in Lal Kunwar v. Chiranji Lal (1), calling it a vicious practice, unworthy of a high-toned or reputable system of advocacy. They further observed as under:- But in any view her non-appearance as a witness, she being present in Court, would be the strongest possible circumstance going to discredit the truth of her case. Their Lordships also took note of the High Court finding which was to the following effect:- It is true that she has not gone into the witness box, but she made a full statement before Chaudhri Kesar Ram, and it does not seem likely that her evidence before the Subordinate Judge would have added materially to what she had said in the statement. They observed:- Their lordships disapprove of su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Virender Nath and another, AIR 1971 Allahabad 29, held that :- the explanation of any admission or conduct on the part of a party must, if the party is alive and capable of giving evidence, come from him and the court would not imagine an explanation which a party himself has not chosen to give. It was further observed that:- If such a party abstains from entering the witness box it must give rise to an inference adverse against him. A Division Bench of the Punjab Haryana High Court also in Bhagwan Dass vs. Bhishan Chand and others, AIR 1974 Punjab Haryana 7, drew a presumption under Section 114 of the Evidence Act that if a party does not enter into the witness box, an adverse presumption has to be drawn against that party. Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by respondent No.2 in his statement on oath that it was at the instance of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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