WOODUN v.

DAYAL
1973 MR 83 1973 SCJ 36

Ramphul* Acting S.P.J., and Rault, J.

In the month of November, 1970, the respondent (then plaintiff) sued the appellant (then defendant) before the district court of Curepipe, claiming from him the sum of Rs 1,200 which he averred he had paid to him (the defendant) by mistake error and in good faith. The circumstances in which the alleged payment had been made were stated in the plaint. They are briefly as follows: On the 13th January, 1964, the plaintiff obtained from the late Beepun Woodun a loan of Rs 1,200 secured by a mortgage and repayable on the 16th January, 1966. On the 13th November, 1965, the defendant claimed from the plaintiff the amount of the aforesaid loan and the latter remitted to him the said sum of Rs 1,200. Subsequently, Beepun Woodun died, and his heirs claimed and obtained payment from the plaintiff of the amount of the mortgage debt (Rs 1,200.) with interest, after they had caused the mortgaged property to be seized.

The case was heard on the merits and, on the 30th April, 1971, the district magistrate gave judgment for the plaintiffs, ordering the defendant to pay to him the sum of Rs 1,200. with interest.

The defendant has now appealed against the magistrate's judgment on the ground that the evidence adduced by the plaintiff in the court below was contrary to the averments contained in the third and fourth paragraphs of his plaint. The paragraphs in question read as follows:
3. Whereas on the 13th day of November, 1965, at Defendant's request, the plaintiff, by mistake error and in good faith, paid to the defendant, the aforesaid sum of Rs 1,200, due to him as aforesaid. Whereas the Defendant claimed and cashed the aforesaid sum of Rs 1200. without any right, title or capacity.

The evidence which the plaintiff gave before the district court was briefly as follows: On the 16th January, 1964, he obtained from Beepun Woodun a loan of Rs 1,200 secured by a mortgage, which he had to refund two years later. In the month of November, 1965, at the defendant's request, he called on his creditor who told him that he was ill and would like the mortgage debt to be paid within ten days. On the 13th of November, having obtained the sum of Rs 1,200., the plaintiff called on Beepun Woodun who asked him to remit the amount to the defendant who was in an adjoining room. The plaintiff went into that room and there, out of Beepun Woodun's view, delivered the sum of Rs 1,200. to the defendant who gave him a receipt which he signed in his own name and not in his capacity as Beepun Woodun's agent. Beepun Woodun died on the next day. Subsequently,

Beepun Woodun's heirs seized the mortgaged property and, to prevent it from being sold, the plaintiff had to pay them Rs 1200. the amount of the mortgage debt.

On the hearing of the appeal, Mr. Mohamed, for the appellant, stated that the plaint which was before the district court was an action en r p tition governed by article 1376 of the Civil Code, and submitted that, the evidence being that Beepun Woodun had authorised the defendant to receive the money from the plaintiff, the plaintiff was debarred from claiming the amount from the defendant. He added that the plaintiff had no cause of action. Mr. M. Gujadhur, for the respondent, submitted, inter alia, that paragraph 3 of the plaint may be read disjunctively, and invited our attention to the plea which the defendant had given before the district court.

We must here observe that in his plea the defendant had stated that he had no knowledge of the alleged transaction between the plaintiff and Beepun Woodun. As regards paragraphs 3 and 4 of the plaint, he had denied the averments contained therein and had averred that the plaintiff had repaid him the sum of Rs 1200. which was a loan made to the plaintiff by him (the defendant) and that this payment of Rs 1200. had nothing to do with any other party.

The question which arises is whether, in the circumstances of this case, the plaintiff was entitled to recover from the defendant the sum he had paid. It cannot be denied that the facts stated in paragraphs 3 and 4 of the plaint are in variance with those deponed to by the plaintiff. But in a suit before the district court, where pleadings are not governed by strict rules and where the parties may conduct their own case without legal assistance, the magistrate is more concerned with discovering the real issue on which he has to adjudicate than with matters of form or procedure. What was the real issue when the case came before the magistrate for hearing on the merits? The plaintiff alleged that the defendant had, without any right, claimed and obtained from him the sum of Rs 1200. which he had paid by mistake and in good faith. The defendant admitted having received the sum of Rs 1200. from the plaintiff but alleged that the sum represented the amount of a loan which was owed to him by the plaintiff. After hearing the evidence the magistrate rejected as untrue the defendant's allegation that the payment to him was in respect of a loan that was due to him (the defendant) personally. The evidence fully supports the magistrate's finding on this point. The next question which the magistrate had to decide was whether the payment was made to the defendant in his capacity as Beepun Woodun's mandataire. Although the plaintiff's evidence on this issue is to the effect that he was led by Beepun Woodun to believe that the defendant had authority to accept payment on his behalf and that by accepting payment and issuing a receipt the defendant implied that he had authority to receive payment on Beepun Woodun's behalf, yet, from what subsequently happened, it became clear that the defendant was a false agent and that the plaintiff had remitted the sum to him sincerely believing that he was authorised to receive payment. From the plaintiff's evidence, from the receipt which the defendant signed in

his own name and from the defendant's plea and the answers he made when he was examined in court, it is reasonable to conclude that the defendant was a person who falsely pretended to be Beepun Woodun's agent and deceived the plaintiff. He was, in fact, a false agent who, when he received payment on behalf of Beepun Woodun, accepted the money for himself, issued a receipt in his own name and later alleged that the money was due to him personally. What happened is this: Instead of remitting the money to his creditor, the plaintiff remitted the money to the defendant believing wrongly, but in good faith - that he was his creditor's agent when, in truth and in fact, he was a false agent who received and kept the money for himself.

It is our considered opinion that a person who owes money to X and believing that Y is X's agent and in that capacity has authority to receive payment on X's behalf, makes a payment in good faith to Y and later becomes aware that Y is a false agent and has accepted payment not for X but for himself, has a right of action against Y based on article 1376 of the Civil Code, i.e. an action en rp tition. The authorities referred to under the following notes in Dalloz, Nouveau Code Civil, art. 1376 - 1377, seem to support our view: d. Payement fait un autre qu'au cr ancier
92. Il y a payement de l'indu lorsqu'on paye l'un ce qui est d un autre. 93 spcialement, lorsqu'on paye un hritier une somme qui, raison de l'indivisibilit des dettes, ne lui appartenait qu'en partie. 94 Ou lorsqu'on paye un faux mandataire ou un faux h ritier du crancier. 95. Mais si, en payant l'un, le dbiteur savait que la chose tait du un autre et a agi de mauvaise foi, il ne peut pas rpter la somme paye au premier, bien qu'il soit oblig de la payer une seconde fois au v ritable cr ancier.

Having regard to the real issue which was before the district court and to the evidence, we hold that the conclusion reached by the magistrate was the right one. The appeal accordingly fails and is dismissed with costs. Appellant: Attorney R. Tegally. Y. Mohamed, of Counsel.

Respondent: Attorney D Toolsee. M. Gujadhur, of Counsel. Record No. 2442.