[1944] EACA 11

## APPELLATE CIVIL

## Before HORNE. J.

## $\underbrace{\cdots\cdots\cdots\cdots}$

GURBUX SINGH, trading as GURBUX SINGH & SONS, Appellant (Original)

$Plaintiff$ ) ν.

## POPATLAL H. KOTHARI, Respondent (Original Defendant)

Civil Appeal No. 8 of 1944

Action for goods sold and delivered—Submission that no case to answer—Duty of trial Judge—Appeal.

The plaintiff claimed from the defendant the price of certain goods sold and delivered. At the close of the plaintiff's case the defendant submitted that there was no case to answer and the learned magistrate non-suited the plaintiff.

The plaintiff appealed.

The facts appear sufficiently from the judgment.

Held (12-10-44).-(1) That on the whole of the evidence led by the plaintiff the learned magistrate could not safely hold that it disclosed no cause of action against the defendant. (2) When at the close of the plaintiff's case the defendant submits that there is no case for him to answer, the magistrate ought to ask the defendant if he elects to call no evidence and ought not to rule that there is no case to answer unless the defendant

says that he is not going to call any evidence.

Appeal allowed.

Alexander v. Raysen 1936 1 K. B. 169, Parry v. Aluminium Corporation, Ltd. (1940) 162 L. T. R. 236, referred to.

Trivedi for Appellant.

Mandavia for Respondent.

JUDGMENT.—The appellant as plaintiff claimed from the respondent the price of certain goods sold and delivered. The defendant denied the sale and alternatively pleaded that the goods had been rejected and counterclaimed for storage of the goods not removed after being rejected. The appellant gave evidence in support of his claim and in the course of it the defendant's advocate asked the Court to non-suit him on the ground that the invoices relating to the goods and the account in the plaintiff's books were headed not with the name of the defendant but the name "Balmander School." That application was refused but was renewed when appellant's evidence was concluded. It then appeared that the defendant had ordered the goods, had arranged for their delivery to his own premises, had then complained of the quality of items and had negotiated directly with the appellant and through the respective solicitors for a settlement and that the dispute over the goods had continued for about three months before the plaint was filed. The magistrate came to the conclusion that the plaintiff had no cause of action against the defendant and dismissed the suit. This conclusion is tantamount of finding that there was in existence another party, a separate entity, the Balmander School, which should have been sued.

Although the defence in paras. two and three sets up that the defendant is not liable, the defendant does not plead the material fact that there is another legal person who is liable. The respondent's conduct could in my opinion lead the appellant to believe that the respondent was the proprietor of the school and in those circumstances, if it was really his case, that the school was a distinct legal entity. he ought to have pleaded it. For every material fact on which a party relies should be pleaded (Order 6, rule 1) and a defendant must raise by his pleading all matters which show the action not to be maintainable (Order 6 rule 5). with the rules and It can hardly be said that the defence complies it is open to a Court in considering all the evidence to draw the inference that the defendant did not seriously rely on a defence to the effect that he was not the party to be sued in respect of this alleged contract. The respondent clearly claims in the correspondence that the goods in question are on his premises. Throughout he acts as if he were a principal in the matter

even to the extent of offering a settlement. He then counterclaims for the goods being on his premises. And these premises are his address and where the school is carried on. The Magistrate considered, however, that all such evidence, which is consistent with ownership of the school, is outweighed by the account and the invoices in the name Balmander School. There seems to be nothing unusual in the school having a name and still being the property of the respondent. It is not to be supposed that every farm, shop or store which may have a name is on that account alone to be considered as a separate legal entity. Something more is required and that something in my opinion gught to have been given in evidence by the respondent for there was sufficient evidence before the Court to shift the onus of proof upon him. Moreover all the facts of his relationship with the school are matters within his knowledge and it was his affirmative issue throughout. If he can establish that issue out of the mouth of the appellant he is entitled to do so. But I can find nothing in the cross-examination which amounts to an admission that there is in existence a separate entity, the school. There is one statement made in re-examination that every order placed by the defendant is paid by the school. But that statement must be considered with the other evidence and it is remarkable that most of the cross-examination of the appellant is not directed to the point of another party being liable but to the settlement between appellant and respondent; and, therefore, when the whole of the evidence led by the plaintiff is considered, I do not think that the Magistrate could safely hold that such evidence disclosed no cause of action against the respondent.

As was said in Civil Appeal No. 7 of 1936 M. L. Shah v. Karman Mepa & Co. by Hall, C. J.: "It is a very strong line to take to throw out the plaintiff's case at the close thereof if the plaint and the evidence in support thereof are in the least degree approximate."

An authoritative observation on the inconvenience of asking for a ruling in cases tried by a single judge is to be found in *Alexander v. Raysen* 1936 1 K. B. 169 at p. 178 where the Court say:

"We think, however, that this is highly inconvenient. For the judge in such cases is also a judge of fact and we cannot think it right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed. Certainly no one would ever dream of asking a jury at the end of the plaintiff's case to say what verdict they would be prepared to give if the defendant called no evidence, and we fail to see why a judge should be asked such a question in cases where he and not a jury is the judge that has to determine facts. In such cases we venture to think that the responsibility for not calling rebutting evidence should be upon the other party's counsel and upon no one else."

The judgment of the Court in that case, which was an action on contract, was prepared by Romer, L. J. In Parry v. Aluminium Corporation, Ltd. (1940) 162 L. T. R. 236, which was a negligence case, Goddard, L. J., declared that in most cases where a judge is asked to rule no case to answer the judge should refuse to rule unless the opposite party says he is not going to call evidence. Apart from libel and slander cases I think Alexander v. Raysen and Parry v. Aluminium *Corporation, Ltd.*, establish the practice that should be followed when a magistrate is asked to rule that there is no case. The Magistrate should not rule unless the party requesting him to rule elects to call no evidence.

When the respondent was before the Magistrate his advocate was not asked whether he was going to call any evidence and he may be said to have elected not to call evidence. Nevertheless I do not think that proper order would be to enter judgment for the plaintiff for there are other issues of fact and law to be decided. I therefore set aside the ruling of the Magistrate and his order dismissing the action with costs. I allow the appeal with costs and order the Magistrate to proceed with the hearing of the case. All costs so far incurred in the Magistrate's Court will follow the event.