TMI Blog1965 (3) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... ritten statement. At the time of delivery, the usual short certificate was given by the Railways. The Court of first instance decreed the suit in part only for ft sum of ₹ 188-18 as on the admitted shortage of 5 maunds and 14 seers of sugar, pilfered in transit. The learned Subordinate Judge, Bankura, on appeal by the plaintiff firm, decreed the suit for a further sum of ₹ 810-3 as, mainly on the ground of the said Assessment Certificate for the deteriorated sugar of about 28 maunds, which causes the real difficulty in this appeal. The said certificate was taken as the basis of damage. 3. Parties came to the Court inter alia on the following relevant facts. It was a consignment of sugar of 200 bags, weighing 550 maunds, from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Munsiff's reasoning, on the other hand, is repeated by Sri Basu before me that opportunity was given to the plaintiff to produce documents in order to prove the quantity of sugar damaged or about the disposal of the damaged stuff. Account books were accordingly produced but relevant entries were not proved. Another witness of the plaintiff said that it was not possible to ascertain from the account books what was the actual loss. 5. After distinguishing a decision of this Court in the case of Balchand Badriprasad v. Union of India, (S) and after laying undue stress on the acceptance of the additional written statement, the Court of appeal below inter alia held, not relying on the plaintiffs witnesses, that it was the duty of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et us discuss the matter, and let us agree that for the purpose of this discussion we will be more or less frank; we will try to come to terms, and that nothing that each of us says shall ever be used against the other so as to interfere with our rights at war, if, unfortunately, war results'. That is what I understand to be the meaning, not the definition, of 'without prejudice'. 9. The rule which excludes documents marked 'without prejudice' is a wholesome rule, adopted to enable the disputants to engage in discussion, for the purpose of arriving at terms of peace. Without this protective rule it would often be difficult to take steps towards amicable adjustment. The Court, in my judgment, should always take the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23 Cal 49) (supra) but where absolute certainty is impossible, though damages are not uncertain, the amount of damages might be still ascertained by the usual rules of evidence to a reasonable decree of certainty. The decision in the case of Haji Latif Abdulla (supra) of the Madhya Pradesh High Court is not of much help, because it is a case of provisional certificate, the terms of which are also not known. It does not appear again whether on the certificate the expression 'without prejudice' was there or not. It might be mentioned that there is no evidence in the instant case that the terms were accepted by the plaintiff. For these reasons the further decree passed by the Court of Appeal below is unsustainable and should be set asi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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