Full Judgment Text
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PETITIONER:
SITARAMACHARYA (DEAD) THROUGH L.RS.
Vs.
RESPONDENT:
GURURAJACHARYA (DEAD) THROUGH L.RS.
DATE OF JUDGMENT: 06/01/1997
BENCH:
K. RAMASWAMY, G.T. NANAVATI
ACT:
HEADNOTE:
JUDGMENT:
O R D E R
Leave granted.
We have heard learned counsel on both sides.
This appeal by special leave arises from the judgment
dated September 18, 1995 made in R.S.A. No. 679/94 by the
Karnataka High Court. The appellant’s father filed the suit
for declaration and rendition of account from the
respondent. According to him, he had purchased the business
of the restaurant on July 2, 1951 for a consideration of Rs.
2000/- out of his own funds under Ex.P-7. Since he was
employed as a teacher and the respondent was loitering
jobless, he put the respondent in charge of the business.
However, due to mismanagement of the business on the part of
respondent, the appellant’s father filed the suit with the
above relief. The trial Court decreed the suit on October
28, 1986, but on appeal the Addl. District Judge by his
judgment and decree dated February 28, 1994 reversed the
decree and dismissed the suit and in the second appeal it
was confirmed. Thus this appeal by special leave.
In the earlier proceedings, the respondent had made an
unequivocal admission in the written statement as under:
"2. In 1946 P. Vasudevacharya had taken a loan from
Sitaramacharya the elder brother of the opponent. Since P.V.
Rusdevacharya happened to be the relative of the opponent
and his elder brother, the dealings were continued for a
long time.
6. The opponent was never a servant of the deceased P.
Vasudevacharya. He came down to Bijapur in August 1951 at
the instance of his elder brother just to carry on the
business on behalf of his said elder brother who was by that
time the sole proprietor of the shop. Since the elder
brother could not do the business of the hotel, the opponent
has been doing it on his behalf. He has since obtained the
requisite license from the authorities in his name and he
has himself taken the some premises on use from the
landlord".
The respondent had also set up the plea in the written
statement that he had sufficient funds to purchase the
property in question. The trial Court had considered his
evidence. On his own admission that there were several
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decrees pending execution against him at Udipi, the trial
Court found in unlikely that the would have necessary funds
to purchase the property in plaintiff’s name. His plea that
he had borrowed from his brother-in-law was negatived on the
ground that his brother-in-law was not examined. The
appellate Court relying upon the judgments of this Court,
wherein it was held that an admission made in an earlier
proceeding could be considered as conclusive, held that the
respondent has sufficiently explained the admission and
that, therefore, his admission was conditional. The
appellant Court has recorded in this behalf as under:
"But in this case opined that the
present defendant made admission in
Ex.P-10 under constraint and
compelling circumstances."
The appellate Court has not explained any of the
circumstances much less compelling one under which he came
to make such an admission. Under Section 18 of the Evidence
Act the admission made by the party would be relevant
evidence. Section 31 provides that "admissions are not
conclusive proof of the matters admitted but they may
operate as estoppel under the provisions hereinafter
contained". In view of the admissions referred to earlier
they appear to be unequivocal and the finding recorded by
the appellate Court is cryptic. On the other hand, the trial
Court has gone into the evidence on issues in extension and
considered the evidence and the appellate Court has not
adverted to any of those valid and relevant consideration
made by the trial Court. The High Court has dismissed the
second appeal holding that they are findings of fact
recorded by the appellate Court on appreciation of evidence.
We think that the view taken by the High Court is not
correct in law. The admissions in the written statement in
the earlier proceedings, though not conclusive, in the
absence of any reasonable and acceptable explanation, it is
a telling evidence heavily loaded against the respondent.
The appeal is allowed. The judgment of the High Court
and the appellate Court stand set aside and that of the
trial Court stands confirmed. No costs.