P L D 1961 Dacca 85 (PLP)

2. According to the plaintiff, there was an oral contract between the defendant and the plaintiff on 20th April 1951, to the effect that the plaintiff would get from the defendant Rs. 50 per 100 cubic feet of sand if it were delivered near the bridges after purchasing the same from Savar and the plaintiff would get Rs. 41 per 100 cft if the same were supplied in the bank of the Lakshya river and that the plaintiff would get wages for delivery of bricks at the rate of Rs. 12‑8‑0 per thousand Choura para brick field of the Government up to the work site and further that the plaintiff would get wages at Rs. 25 per 100 cft. of earth cut or dug. The plaintiff claimed Rs. 2,815‑10‑0 on account of giving delivery of bricks and Rs. 506‑4‑0 for cutting earth and Rs. 6,325‑6‑0 for giving delivery of sands, in all a sum of Rs. 9,647‑4‑0 less a sum of Rs. 480 received as advance that is, a net sum of Rs. 9,167‑4‑0 on account of the works done on the basis of the oral contract. According to the plaintiff, the defendant was appointed a contractor for the purpose of certain bridge construction and he was engaged as a. sub‑contractor by the defendant for works to be done at the rates indicated above. The defendant having failed in spite of demands to pay up the claim of the plaintiff the latter was obliged to bring the present suit.

3. The defence, inter alia was that the plaintiff Evan never engaged as a sub‑contractor as alleged, rather the plaintiff was an employee of one of the three sub‑contractors engaged by the defendant, i.e., he was an employee of the sub‑contractor Messrs Kasem Jafar. According to the defence, the plaintiff had nothing to do with the defendant. It was also pleaded that the plaintiff while working as a servant of Messrs Kasem Jafar & Co. failed to make over the entire sum of Rs, 480 to his master Messrs Kasem Jafar & Co. and as such he was discharged from service and another person Aziz Mia was taken in his place. This gave rise to a grudge and the plaintiff has, accordingly brought this fictitious suit against the defendant. It was further pleaded that only three sub‑contractors were engaged by the defendant for the purpose of the construction work in respect of the bridges. The defendant claimed to have paid all the three sub‑contractors in full and nothing remained due by him to those three sub‑contractors, namely, (1) Kasem Jafar, (2) Dhanaruddin and (3) Habib Manjhi.

4. The learned Subordinate Judge after consideration of the evidence on record came to the conclusion that the plaintiff was not engaged as an independent sub‑contractor by the defendant, rather he was an employee of Kasem Jafar & Co., and on this finding the learned Subordinate Judge took the view that the plaintiff was not entitled to succeed. The suit was, accordingly, dismissed with costs.

5. The plaintiff has preferred an appeal to this Court against the decision of the learned Subordinate Judge.

6. Mr. S. C. Bose appears for the plaintiff and Mr. P. C. Pakrashi appears for the defendant‑respondent.

7. The learned Advocate for the plaintiff-appellant contends before us that the learned Subordinate Judge fell into an error in holding that the plaintiff was not a sub‑contractor and in further holding that the plaintiff was merely an employee under Kasem Jafar. According to him the learned subordinate Judge failed to consider the effect of production of so many documents, such as Exh. 1 series in particular, from the custody of the plaintiff and also failed in not considering that there was no evidence on record to show as to how these documents came into the posses sion of the plaintiff and how these could be Produced by him, The learned Advocate has also contended that the slip as per Exh. I series having come from the custody of the plaintiff and their genuineness not being disputed the learned Sub‑ordinate Judge ought to have placed the onus of proof upon the defendant in so far the question was raised by the defendant that the plaintiff was not a sub‑contractor engaged by the defendant or in so far the question was raised that the plaintiff was an employee of Kasem Jafar.

8. The learned Advocate for the respondent, however contends that the learned Subordinate Judge was right, after consideration of the evidence on record, to come to the conclusion on that the plaintiff was nothing but an employee of Kasem Jafar and he had no independent status as sub‑contractor appointed by defendant.

9. The main question, therefore, to be decided in the present case is as to whether the plaintiff was a sub‑contractor engaged by the defendant as alleged by him or he was merely an employee of Kasem Jafar and that he had no independent status as a sub contractor as alleged by the defence.

10. The plaintiff does not base his claim in the present suit on any written agreement. According to him he was engaged orally by the defendant on 20‑4‑1951, and he got from time to time slips in the shape of receipts showing the quantity of goods delivered. The plaintiff' has also stated that a sum of Rs. 480 was paid to him by the defendant. The defendant who has examined himself as D. W. 1 and also other defence witnesses (D. W. 2 to D. W. 5) have on the other hand denied the plaintiff's claim that he was appointed as a sub‑contractor. The net oral evidence on the defence side is in substance a denial of the plaintiff's being appointed as a sub‑contractor by the defendant. The evidence of Kasem Jafar, however, stands on a different footing. Although it was at the instance of the defendant that Kasem Jafar whose real name seems to have been Syed Abdul Kasem was ultimately examined as a witness yet it transpired that the evidence of Kasem Jafar did not go much in favour of the defendant.

11. The learned Advocate for the respondent has therefore, contended before us that this witness ought to have been declared hostile and the defendant ought to have been allowed to cross examine him. He has also submitted that, at any rate, the evidence of this witness should have been discarded. Sometime before this the present appeal came up for hearing before this Court and after hearing the parties for sometime it appeared necessary for ends of justice to have on record the evidence of Kasem Jafar as a witness. By an order dated 3‑4‑1958, the learned Subordinate Judge was directed to give an opportunity to the defendant respondent to examine Kasem Jafar as a witness and also to the plaintiff appellant to cross‑examine Kasem Jafar and after recording the evidence in accordance with law to send the said evidence to this Court at an early date. The appeal as such was kept on the file. It appears that the witness concerned was examined before the trial Court on the 15th day of November 1958, and it seems that as soon as the deposition of the witness, Syed Abul Kasem whose firm's name was Kasem jafar & Co. was recorded On 15‑11‑58, an application for permission to cross examine and witness was put in on behalf of the defendant. This application was, however, rejected by the learned Subordinate Judge. The learned Advocate for the defendant respondent renewed the prayer for cross‑examining the witness by a petition filed in this Court. He relied upon certain decisions, in the case of Surendra Krishna Mandal v. Ranee Dassee (33 C L J 34) and the case of Luchiram Motilal v. Radha Charan Poddar and others (34CLJ 107), and in the case of Ammadthayaramal v. The Official Assignee, Madras (I L R 56 Mad. 7) and argued that it was a fit case where the witness, namely, Syed Abul Kasem should have been declared as a hostile witness and the defendant should have been allowed to cross‑examine him. He also submitted that the learned Subordinate Judge, who was directed to record the evidence of this witness was no more than a commissioner and, as such, he had no discretion in the matter and this Court ought to allow the defendant's prayer for cross examining the witness. The learned Advocate for the plaintiff appellant has, however, opposed this prayer. It appears on a reference to the pleading of the defendant and his evidence that there was no ill‑feeling between the defendant and this witness. No collusion has also been alleged in the written statement as between this witness and the plaintiff, nor even after 15‑11‑1958, any attempt was made for amending the written statement on the allegation that the plaintiff' was acting in collusion with this witness Syed Abul Kasem. In view of the provisions of Order XLI, rule 28 of the Code of Civil Procedure it is difficult to agree with Mr. Pakrashi that the learned Subordinate Judge while recording the deposition of Syed Abul Kasem acted merely as a commissioner and not as a Court. The learned Subordi nate Judge, in our view, acted rightly and after due exercise of his discretion rejected the application as presented before him on 15‑11‑1958. There seems to be nothing on record to show that this witness bore a hostile animus to the defendant who called him for the purpose of giving evidence and from the manner of evidence as given by this witness it does not also appear to us that he was not desirous of telling the truth. As observed in the case of Surendra Krishna Mondal v. Ranee Dassee, two conditions, namely, a hostile animus and that the witness being not desirous of telling the truth should weigh in the matter of allowing the prayer for cross‑examining a witness cited by a particular party. As observed in the case of Luchiram Motilal v. Radha Charan Poddar and others, "It should be remembered that a witness who' is unfavourable is not necessarily hostile, for a hostile witness has been defined as one who from the manner in which he gives his evidence shows that he is not desirous of telling the truth to the Court". The witness, namely, Syed Abul Kasem has support ed the defendant in many respects but not in respect of all the points which were sought to be proved in his favour. This witness has admitted that the letter Exh. A (1) was written by him and the .letter Exh. A (2) was written by one, his friends Dudi Mia. He has, however, denied the defence suggestion that Abed Ali was his officer. The evidence being unfavourable in this respect, the learned Advocate for the defendant respondent, has tried to impress upon us that this witness should be declared hostile. We do not, however, find any reason as to why simply because a part of his deposition goes against the defendant, the witness should necessarily be declared hostile and as to why the defendant should be given a further opportunity for the purpose of cross‑examining him. In view of the nature of the pleading and in view of the definite case of the defendant that all the dues of Kasem Jafar & Co. had been satisfied and in view of the evidence of the defendant himself that there was no ill‑feeling with this witness it is difficult for us to hold that this witness was not desirous of telling the truth. We have, therefore, rejected the application for permission to cross‑examine the witness. In the circumstances, as indicated above, it is not, therefore, safe and proper to discard the evidence of this witness. The plaintiff appellant also asked for permission to put in additional evidence just to prove that the pleader's notice, Exh. 4 had been served before the alleged criminal case under section 379 of the Pakistan Penal Code was started. The prayer for giving additional evidence was made even before this and the application was rejected by the same order of this Court which was passed on 3‑4‑1958, and we did not think it proper to give the plaintiff appellant any further opportunity to put in additional evidence on that score. [Portion, not relevant for reporting omitted‑Ed.]

12. In the result this appeal is allowed in part with propor tionate costs. The judgment and decree of the trial Court are set aside and the suit is decreed for a sum of Rs. 6,863‑8‑0 with proportionate costs. The amount of Court‑fees payable on the plaint as also on the memorandum of appeal presented to this Court will be realised from the defendant who will be entitled to deduct the same from the decretal dues of the plaintiff. Let a copy of the judgment and decree be forthwith sent to the Collector Dacca. AKBAR, J.‑I agree. K. B. A. Appeal accepted.