I shall use a phrase which Mr. Kar repeatedly used and enquire whether the plea set up by the appellants could be said to be a plea of confession and avoidance. Mr. Kar's argument, it will be recalled, was that the appellants had confessed the contract, but they had sought to avoid it by pleading coercion. The result, according to Mr. Kar was that his clients were entitled to take the confession out of the pleading of the appellants and to reject the avoidance and to put the appellants to strict proof of coercion by which they wanted to avoid the contract. In my view, that was precisely what the respondents could not do.
17. I shall refer only to two old cases where the law was laid down with all the clarity and brevity of Sir Barnes Peacock. Both the decisions are reported in Vol. IX of the Weekly Reporter. The first of them is the case of -- 'Sooltan Ali v. Chand Bibee' 9 SWR 130 (A). The head-note of the case which correctly summarises the decision is in the following words :
"A written statement is not a pleading in confession and avoidance whereby a defendant is bound by the confession and compelled to prove the avoidance: if used as evidence against a defendant, the whole statement must be taken together."
18. What the learned Chief Justice held in that case with the concurrence of Dwarkanath Mitter J., was what has subsequently been laid down in several decisions of the Judicial Committee notably --'Motabhoy Mulla Essabhoy v. Mulji Haridas' AIR 1915 PC 2 (B). 'Motabhoy Mulla Essabhoy v. Mulji Haridas' AIR 1915 PC 2 (B). The principle is that while a Court of law is entitled to accept a part of the evidence of a witness and to reject another part, a pleading cannot be so dissected, but must be taken either as a whole or left alone altogether. In other words, if a written statement contains an admission of certain facts which are favourable to the plaintiff but contains a denial of other facts favourable to him or an assertion of other facts which are unfavourable, the plaintiff must, if he wants to avail himself of the admission, take not only the first set of facts as truly stated, but also the second set of facts.
Applying that principle to the present case, the respondents, if they wanted to avail themselves of the statement of the appellants were bound to take not only their admission that a sum of Rs. 5,000/-had been paid and that it had been paid in pursuance of a form of settlement, but also their further statement that they had been compelled to submit! to the settlement by coercion.
In the case to which I have already referred, Sir Barnes Peacock illustrated the principle by a hypothetical case.
"Suppose", the learned Chief Justice observed, "a man should be sued for goods sold and delivered, and should state and swear to the statement that the goods were bought and delivered to him in a shop by a person whom he did not know and that he paid for them at the time."
If that statement were true, he could not honestly state that he had never bought the goods; and if the statement that he had bought them, was to be taken against him without also taking his statement that he paid for them at the time, the greater injustice might be done, for he would be unable to compel the attendance of the man who sold the goods, inasmuch as he was unknown to him; but if the plaintiff being unable to read one part of the statement as evidence against the defendant without reading in his favour what he said as to payment, the plaintiff would have to cite the man who sold the goods for the purpose of proving his case, and then if the witness should speak the truth, the defendant would make out his defence by eliciting from the witness on cross-examination the fact that the defendant had paid for the goods at the time."
19. It would thus appear that in the hypothetical case instanced by the learned Chief Justice, the plaintiff would not be relieved of proving his case, although the defendant had admitted receipt of the goods, since he had coupled that admission with the statement that he had paid for them already. If the plaintiff wanted to utilise the statement of the defendant, he would have to take both the admission of the receipt of the goods and the assertion of payment. If he was not prepared to take both, he would have to prove his case, and not till he had made out a 'prima facie' case, would the burden of proof shift.
20. It is interesting to note the observation made by the learned Chief Justice at the end of his judgment. He said this :
"We have given this explanation of our view of the effect of a written statement, inasmuch as we constantly see that there is a great misunderstanding as to the mode in which it ought to be used, if intended to operate against the defendant as an admission."
21. The other case to which I would refer is the Full Bench Decision in -- 'Poolin Beharee v. R. Watson and Co.' 9 SWR 190 (C). The view expressed by Sir Barnes Peacock in the earlier case was repeated by him in the course of the leading judgment delivered on behalf of the Full Bench. AH the other learned Judges who were members of the Bench agreed with the Chief Justice and each illustrated his meaning by instancing a hypothetical case of his own.
It is unnecessary for me to make a detailed reference to the observations made by the learned Judges, but I might refer to the view expressed by Phear J., with regard to one contention advanced before the Court which was identical with a contention urged before us by Mr. Kar. One of the reasons for which, Mr. Kar said, the burden must be hold to lie on the appellants was that they were pleading facts within "their special knowledge.
The same argument was advanced before the Full Bench. Dealing with it, Phear, J., said that there could be no question of such a principle applying in cases of that kind, because actually no fact within the special knowledge of the defendant was being pleaded. In any event, the learned Judge added, the principle could not vary the principal rule of law which was that a party, setting up a case must in the first instance give evidence in its support.
It is again interesting to note the remark of Phear J., that he was making those observations about the argument of facts lying within the special knowledge of the defendant, because that was not the first time that he had heard that particular principle attempted to be used by learned Counsel and therefore he thought it was necessary to put a stop altogether to its erroneous application.
IN THE HIGH COURT OF CALCUTTA
A.F.O.O. No. 22 of 1954
Decided On: 16.07.1954
Fateh Chand Murlidhar Vs. Juggilal Kamlapat
Hon'ble Judges/Coram:
P.B. Chakravartti, C.J. and S.C. Lahiri, J.
Citation: AIR 1955 Calcutta 465
