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J.N. Eranna Rao Vs. Vitta Dodda Hanumanthappa Subbayya Setty and Co. Bellary and Adoni by Partner Vitta Anjaneya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberSecond Appeal No. 683 of 1956
Judge
Reported inAIR1960AP331
ActsEvidence Act, 1872 - Sections 32(2), 34 and 114
AppellantJ.N. Eranna Rao
RespondentVitta Dodda Hanumanthappa Subbayya Setty and Co. Bellary and Adoni by Partner Vitta Anjaneya
Appellant AdvocateG. Venkatrama Sastry, Adv.
Respondent AdvocateC. Kondaiah, Adv.
DispositionAppeal dismissed
Excerpt:
(i) civil - corroboration of evidence - sections 32 (2) and 34 of evidence act, 1872 - entries in books of accounts whether admissible as evidence and requires corroboration - entries admissible under sections 32 (2) and 34 - evidence falling under both sections is sufficient in itself - no corroboration required under section 32 (2) - courts having discretion can corroborate it. (ii) adverse inference - illustration (g) to section 114 of evidence act, 1872 - evidence produced by defendant at late stage not accepted by court on objection by plaintiff - whether adverse inference can be drown - adverse inference can not be drawn against defendant on non acceptance of evidence. - all india services act, 1951. sections 32(c) (as amended by section 3 of amendment act, 2005] & 10 & general.....basi reddy, j.1. the plaintiff is the appellant. the suit out of which this second appeal arises was brought by the plaintiff against the respondent, who was the defendant in the suit, for the recovery of a sum of rs. 4450-10-0 being the value of 17 tons of oil-cake said to have been supplied by the plaintiff to the defendant on 8-7-1951. the learned district munsiff of adoni who tried the suit accepted the plaintiff's case and decreed the suit with costs. on appeal, the learned district judge of kurnool reversed the judgment and decree of the trial court and dismissed the suit.2. the case of the plaintiff is as follows :3. the plaintiff is the owner and proprietor of an oil mill at adoni called 'sree maruthi oil mills, adoni'. he used to manufacture groundnut oil, oilcake and such other.....
Judgment:

Basi Reddy, J.

1. The plaintiff is the appellant. The suit out of which this second appeal arises was brought by the plaintiff against the respondent, who was the defendant in the suit, for the recovery of a sum of Rs. 4450-10-0 being the value of 17 tons of oil-cake said to have been supplied by the plaintiff to the defendant on 8-7-1951. The learned District Munsiff of Adoni who tried the suit accepted the plaintiff's case and decreed the suit with costs. On appeal, the learned District judge of Kurnool reversed the judgment and decree of the trial court and dismissed the suit.

2. The case of the plaintiff is as follows :

3. The plaintiff is the owner and proprietor of an oil mill at Adoni called 'Sree Maruthi Oil Mills, Adoni'. He used to manufacture groundnut oil, oilcake and such other by-products, The defendant. which is a firm at Adoni represented by its managing partner Vitta Anjanayya, had been the plaintiffs customer from 1949 and was purchasing oil-cake from the plaintiff. On 6-7-1951 Vitta Anjanayya, the managing partner of the defendant-firm. Went to the plaintiff's mill and purchased from the plaintiff's clerk G. Urukunda Rao, in the absence of the plaintiff who was then away in Bombay, 17 tons of groundnut oil-cake at Rs. 255/- per ton, agreeing to pay the price on taking delivery.

The defendant supplied 241 empty gunny bags for being loaded with the oil-cake, and on 7-7-1951 the bags were filled with the cake by the plaintiff's men under instructions from the defendant and the price of the cake i.e. Rs. 4335/- was debited to the defendant's account in the plaintiff's account books. The defendant took delivery of the 241 bags of oilcake on 8-7-1951 and promised to remit the amount immediately but he failed to do so. Thereupon, on 13-7-1951 the plaintiff sent a bill for the amount due and made several demands for payment but in vain: The plaintiff therefore instituted the suit for recovery of a sum of Rs. 4335/- plus interest at 9 per cent per annum, in all amounting to Rs. 4450/10/-.

4. The case of the defendant on the other hand is that he did not purchase any oil-cake on 6-7-1951; that he did not deliver any empty gunny bags to the plaintiff's clerk; that he did not take delivery of any oil-cake on 8-7-1951 and did not promise to pay the price thereof. The defendant's further case is that the plaintiff had forged the delivery note and produced it into court as evidence of the transaction and that the usual practice was that the goods contracted for from the plaintiff and purchased by the defendant, were delivered by the plaintiff only after payment of cash under delivery orders issued by the purchaser after obtaining the acknowledgment of delivery in the gate pass-book, and that no goods were delivered and paid for without the delivery order under any circumstances.

The defendant further alleges that he had purchased 241 bags of oil cake worth Rs. 3800/- at Rs. 219/- per ton on 5-1-1951 and had paid the price in cash and had taken delivery of the same against a delivery order or gate-pass dated 6-1-1951. Taking advantage of the existence of the said delivery order dated 6-1-1951, the plaintiff had made a material alteration in it in the month by changing the figure '1' into the figure '7' so as to make it appear that it was dated 6-7-1951 and had filed the same into court in support of his false claim.

The defendant further states that on 21-6-1951 he had issued a lawyer's notice to the plaintiff claiming damages from the plaintiff for breach of certain contracts; and as a counterblast to that claim of the defendant, the plaintiff had fabricated his accounts and forged the above-mentioned delivery note and filed the present suit. No bill for the goods alleged to have been sold by the plaintiff to the defendant on 6-7-1951 was ever sent to the defendant. In short, the defendant's case is a total denial of the alleged transaction coupled with an allegation that the claim of the plaintiff is false and fictitious.

5. So the crucial issue for determination in the suit was whether the plaintiff sold and delivered 17 tons of groundnut oil-cake worth Rs. 4335/- to the defendant between 6-7-1951 and 8-7-1951.

6. In support of their respective cases the plaintiff and the defendant adduced oral and documentary evidence. The plaintiff examined four witnesses including himself. P.W. 1 (Urukunda Rao) is the clerk of the plaintiff who is said to have sold the oil-cake in question to the defendant in the absence of the plaintiff. He is the plaintiff's maternal uncle's son and looks after the business in the absence of the plaintiff. P. W. 2 (Jaffer Sab) is another clerk in the plaintiff's factory who is said to have delivered the goods to the cartman (P.W. 3) under instructions from P.W. 1.

He also claims to have obtained the thumb-impression of the cart-man on the back of the gate-pass, Ex. A-3, alleged to have been sent by Chinna Hanmanthappa, the clerk of the defendant. P. W. 3 is the cart-man who is said to have taken delivery of the oil-cake on 8-7-51 after putting his thumb-mark on Ex. A-3. P. W. 4 is the plaintiff himself. The documents relied on by the plaintiff, besides the notices which passed between the parties, are Exs. A-1 (a) the day-book entry dated 7-7-1951; A-2(a), the ledger entry bearing the same date; Ex. A-3 the gate-pass dated 6-7-1951 said to have been issued by the defendant to the plaintiff for the delivery of the goods; and A-3(a) is the thumb-impression on Ex. A-3 made on 8-7-1951 by P. W. 3 in token of his having taken delivery of the goods; A-8 (a) dated 6-7-1951, an office copy of the bill for Rs. 4335/- alleged to have been sent to the defendant on 13-7-1951; Ex. A-4. a certificate of posting in respect of the cover containing the original of Ex. A-8 (a) under data 13-7-1951; Ex. A-10(a) the entry in the stock-register with regard to the suit transaction dated 7-7-1951 and Ex. A-10(b) the entry in the stock-book under date 6-7-1951.

7. In proof of his case the defendant examined four witnesses including himself; of whom D.W. 3 is Hanmanthappa, who is one of the clerks of the defendant and who, according to the plaintiff, is said to have issued Ex. A-3 on 6-7-1951 directing the delivery of the oil-cake to the cart-man. D.W. 3, however, swore that he did not issue Ex. A-3 on 6-7-1951 but had issued it on 6-1-1951. D W. 4 is Anjanayya, the managing partner of the defendant-firm, and he denied having purchased any oil-cake on 6-7-1951 or having taken delivery on 8-7-1951 and spoke to the earlier transaction in January 1951 and having taken delivery of the oil-cake on 6-1-1951.

A number of documents were filed on behalf of the defendant to show that in respect of prior transactions, the bills and vouchers were signed by both parties. Those document's are Exs. B. 1 to B. 17. It is material to note that the bill relating to the suit transaction Ex. A. 8 (a) was not signed by the defendant or by any one on his behalf. Ex. B. 20 is the gate pass-book from 18-12-1950 to 2-3-1951, and Ex. B-2(c) is the carbon copy of the gate-pass issued by the defendant to the plaintiff on 6-1-1951.

Ex. B. 18 is a notice sent by the defendant's Advocate at Bellary to the plaintiff under date 21-6-1951 stating that the plaintiff had committed breaches in respect of the contracts entered into on 22-2-1949, 4-3-1949 and in March 1951 and demanding payment of a total sum of Rs. 3551/- failing which the defendant would file a suit for the recovery thereof. This notice was signed by the defendant's Advocate Mr. Sridharamurthy on 3-7-1951 and was actually sent by registered post on 4-7-1951. There are endorsements on Ex. A-9 (Postal cover) in which Ex. B. 18 was enclosed showing that the plaintiff was away from Adoni from 5-7-1951 onwards till 17-7-1951, when the registered letter was delivered to him.

8. The trial court posed the question for decision in this form :

'The important point to be considered in this suit is whether the defendant did not purchase oilcake on 6-7-1951 from the plaintiff'.

The learned District Munsif then went on to detail the entries in the plaintiff's accounts and accepted them as genuine and true. He brushed aside as of no consequence the contention on behalf of the defendant that had the suit transaction been entered into by the defendant with P.W. 1 and the bill had been prepared that day itself, P.W. 1 would have certainly taken the signature of the defendant in the bill, as in all the prior bills both the purchaser and the seller had signed as was evident from Exs. B. 2, 6, 10, 13, 15 and 17.

9. Although the cart-man (P.W. 3) did not support the plaintiff's case and stated instead that he had put his thumb-mark on Ex. A. 3 in token of his having received the wages for ploughing the land in the plaintiff's factory and no attempt had been made to treat the witness as hostile, the District Munsif chose to believe the interested evidence of P.Ws. 1 and 2 that the cart-man (P.W. 3) had put the thumb-impression on 8-7-1951 in token of his having taken the bags of oil-cake in his cart.

10. The District Munsif discussed the contentions of the defendant 'in extenso' and drew adverse inferences from the fact that the defendant had not produced the gate pass-book for the month of July 1951 and also from the non-production of the stock-register. As regards the stock-register, the defendant's witnesses had sworn that the defendant did not maintain any stock-register. As regards the gate pass-book for July 1951, it must be mentioned that apparently a point was made about it before the District Munsif in the course of arguments; and after the arguments had been heard and the case had been posted for judgment, the defendant offered to produce the gate pass-book for July 1951, but its reception was objected to by the plaintiff and the learned District Munsif did not receive it in evidence.

11. On appeal the learned District Judge rightly pointed out that the District Munsif had proceeded on the wrong assumption that the burden lay on the defendant to prove whether he did not purchase oilcake on 6-7-1951 from the plaintiff and that that erroneous view as regards the burden of proof had largely coloured the decision of the District Munsif.

12. The learned appellate Judge noticed that the contract of sale relied on by the plaintiff is a purely oral contract, and that there is no agreement in writing or any receipt or any scrap of paper signed by the defendant or by his clerk to show that the defendant had purchased the oil-cake in question and taken delivery or it from the plaintiff; nor is there any correspondence which passed between the parties prior to 6-7-1951 to show that there was a completed contract and that there was any actual sale of oil-cake to the defendant.

In that view the learned Appellate Judge held that the burden lay heavily on the plaintiff to show that the defendant had purchased the oil-cake from the plaintiff and taken delivery thereof by himself or through his clerk or any authorised agent and had failed to pay the price to the plaintiff. Judging from that standpoint, the learned appellate Judge reached the conclusion that the evidence adduced by the plaintiff did not discharge that burden.

13. As regards the entries in the day-book and the ledger of the plaintiff-Exs. A-1 (a) and A-2(a) which are said to have been made by another clerk of the plaintiff, one M. Sankara Rao who had died 4 or 5 months prior to the suit, the learned appellate Judge observed that it is significant to note that no signature of the defendant or at least that of his clerk was taken in those entries to evidence the suit transaction and added:

'It is easy to make such entries in the plaintiffs own account books at any time; and they are only self-serving statements and cannot be relied upon to prove the case of the plaintiff in the absence of some other evidence which goes to strongly corroborate the same'.

As regards Ex-A-3 which is said to be the gate-pass issued by the defendant to the plaintiff on 6-7-1951 in pursuance of which the oil-cake was delivered on 8-7-1951, the lower appellate court found that it was easy to alter the figure '1' indicating the month to '7', which was the case of the defendant. The learned Judge also relied on the admission made by P.W. 3 the cart-man that the thumb-impression on Ex. A-3 was not put by him in token of his having carted the oil-cake in question, but that it was in token of his having received wages for ploughing. So the learned Judge came to the conclusion that Ex. A-3 could not be the delivery receipt for any goods taken delivery of by the defendant on 8-7-1951.

14. The learned fudge was not prepared to place any reliance on Ex. A. 10(a), which is an entry in the stock-book of the plaintiff under date 8-7-1951, because of the suspicious entry Ex. A. 10 (b) in the same register relating to the alleged transaction on 5-1-1951. It will be remembered that the defendant's' case is that there was an earlier transaction on 6-1-1951 but the entry Ex. A. 10 (b) as it is found now, shows the sale of 17 tons of oil-cake under date 5-1-1951.

As found both by the trial court and the lower appellate court -- and it is obvious even to the naked eye-- the entry bearing date 6-1-1951 was erased and the date has been altered to 5-1-1951 and written in different ink. If in these circumstances the lower appellate court did not think fit to place any reliance on the entries in the plaintiffs stock-register, no reasonable complaint can be made. It may also be pointed out that these two entries Exs. A. 10 (a) and A. 10 (b) have not been legally proved, as none of the plaintiff's witnesses has stated as to who had made those entries.

15. On a review of the entire evidence, the lower appellate Court has recorded the following finding :

'Thus it is seen that there was a dispute between the parties regarding the oil-cake transaction even by 21-6-1951, the date of Ex. B-18. It is therefore not probable that the plaintiff's clerk (P.W. 1) simply believed the defendant or his clerk and had parted with such quantity of oil-cake on a mere word of promise without taking anything in writing from either the defendant or from his clerk to evidence the transaction.

It is quite probable that, as the defendant by his lawyer's notice Ex. B. 18 had threatened the plaintiff with a suit (in fact O.S. No. 274/1954 appears to have been subsequently filed by the defendant against plaintiff), the plaintiff's clerk and relation (P.W. 1) got up the entries in the plaintiff's account books and got the suit filed with false allegations, so that it might serve as a counter-blast to the defendant's suit and with a view to bring pressure on the defendant to compromise the matter.

It is highly unsafe to rely on the mere oral testimony of the plaintiffs witnesses and to pass a decree in favour of the plaintiff in the suit. I do not agree with the lower court and I find that the plaintiff did not sell or deliver the oil-cake in question to the defendant, or to any authorised agent of his and that the defendant is not liable to pay the suit amount to the plaintiff'.

In this view the lower appellate court allowed the defendant's appeal with costs throughout and dismissed the suit.

16. Although elaborate arguments have been advanced in this case, this is a matter which, in its final analysis, is one of assessment of evidence; it is ultimately a question of believing or disbelieving the evidence adduced in the case. The question for determination was: Which of the two versions is true --the plaintiffs version or the defendant's version? The first appellate court, which is the final court of fact, has considered all aspects of the case and disbelieved the plaintiff's version,

17. The learned Advocate for the appellant has, however contended that the conclusion reached by the lower appellate court is vitiated by the erroneous view it has taken as to the admissibility and weight of certain relevant documentary evidence adduced by the plaintiff as well as by its failure to draw an adverse inference from the fact that the defendant has withheld certain, relevant documents which he was in law bound to produce.

18. Before dealing with this criticism it will be convenient to refer to certain outstanding features which, in my opinion, militate against the truth of the plaintiff's case.

1. The present case put forward by the plaintiff differs in material particulars from the case as put forward by him in the earliest notice (Ex. B-19). This was sent by the plaintiff through his lawyer on the 19th July in reply to the notice (Ex. B. 18) sent to him by the defendant through his lawyer on the 4th July wherein the defendant had claimed damages amounting to Rs. 3551/- from the plaintiff for breach of three contracts entered into in February 'and March 1949 and in March 1951.

The plaintiff who is said to have been away at Bombay when this notice was sent, received it after he returned from Bombay on the 16th July and having been apprised of the suit transaction by his clerk (P.W. 1) and of the default in payment made by the defendant, he caused this notice to be issued. In this notice, while repudiating that the plaintiff had committed any breach in respect of the prior contractors with regard to the suit transaction this significant allegation is made.

'On 7-7-1951 when my client was absent from Adoni, you wanted 251 bags (1 wagon). My client's clerk (G. Urukunda Rao) gave delivery of the same, the price being Rs. 255/- per ton. You promised to make payment in a week. Till now you have not made payment. The amount due to my client is Rs. 4335/- with interest at 12 per cent from 7-7-1951'.

It is clear from this that according to the plaintiffs case then, the contract in question was entered into on the 7th and the delivery was effected on the 7th, so much so the plaintiff claimed interest as from the 7th. It further appears from that notice that the defendant had promised to make the payment in a week which would be by the I4th July. If that were so, what need was there to have sent a bill on the 13th itself by post as is now alleged by the plaintiff? Further according to the present case, the contract was entered into on the 6th, the bags were filled with oil-cake on the 7th and the delivery was effected on the 8th July. But the entries in the day-book and ledger maintained by the plaintiff show that the transaction was on the 7th. The explanation given by the plaintiff's witnesses for this metamorphosis in the plaintiff's case, is most unconvincing.

2. There were no dealings between the parties between March and July 1951 till this solitary deal in July.

3. The contract in question was an oral contract.

4. It had been the practice, as admitted by P.W. 1, that previous contracts had been signed both by the seller and the buyer. This uniform practice was deviated from in this particular case for no ostensible reason.

5. The entries in the plaintiff's books are self-serving entries and certainly not above suspicion.

6. As regards the actual delivery of the oil-cake in question, the plaintiffs own witness P.W. 3, the cart-man, does not support his case.

19. Now turning to the arguments advanced by the learned Advocate for the appellant with regard to the plaintiffs documents his first contention is that the lower appellate court has erred in holding that Exs. A. 1 (a) and A-2 (a), the entries in the daybook and ledger of the plaintiff, have not been legally proved. According to P.W. 1 and P.W. 4 these entries were made by Sankara Rao, the deceased clerk of the plaintiff. The learned appellate Judge was of the view that these entries were not admissible in evidence because neither P.W. 1 nor P.W. 4 stated that the entries had been made in their presence.

It is true that the learned Judge was in error in holding that these entries are not admissible in evidence. Under Section 32(2) of the Evidence Act, in the case of a statement by a person who is dead, made in the ordinary course of business and in particular, when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, the statement itself is a relevant fact; and the section does not require such entries to be corroborated before liability could be fastened on the basis of such entries. This section may be contrasted with Section 34 of the Evidence Act which is in the following terms:

'Entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to enquire, but such statements shall not alone be sufficient evidence to charge any person with liability'.

The illustration to the section reads:

'A sues B for Rs. 1000/- and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant but arc not Sufficient, without other evidence, to prove the debt'. But it is one thing to say that corroboration of entries admissible under Section 32(2) is not necessary in law, and it is quite a different thing to say whether in the circumstances of a given case corroboration is or is not necessary. Even in the decision relied on by the learned Advocate for the appellant Ram Pyarabai V. Balaji Shridhar, ILR 28 Bom 294 Jenkins C.J. stated the legal position as follows :

'Entries in accounts relevant only under Section 34 are not alone sufficient to charge any person with liability : corroboration is required; but where accounts are, as here, relevant also under Section 32(2), they are in law sufficient evidence in themselves, and the law does not, as in the case of accounts admissible only under Section 34, require more .........

At the same time we wish it to be distinctly understood that though the accounts, which are relevant under Section 32(2), do not as a matter of law require corroboration, the Judge is not bound to act on them without corroboration; that is a matter on which he must exercise his own judicial discretion as a judge of fact. In what I have said I have in no way limited the discretion of the Judge, as a judge of fact in determining whether or not be will act on the accounts without corroboration, the only point being that the law does not require corroboration'.

It is manifest that in the present case the learned Appellate Judge was not prepared to act on the entries without corroboration. He observed :

'It is easy to make such entries in the plaintiffs own account books at any time, and they are only self-serving statements and cannot be relied upon to prove the case of the plaintiff, in the absence or some other evidence which goes to strongly corroborate the same'.

20. It may also be pointed out that these entries are of little probative value as none of the plaintiff's witnesses deposed that the clerk who had made those entries, was personally aware of the transaction in question.

21. As I have already indicated, the entry in the stock-book maintained by the plaintiff Ex. A. 10(a), besides not having been legally proved, is worthless as the other entry Ex. A. 10 (b) in the same register, is a clumsy piece of fabrication.

22. The nest contention on behalf of the appellant is that the lower appellate court should have drawn a hostile presumption on account of the failure on the part of the defendant to produce the relevant documents which were in his possession. It is said that the defendant should have produced the gate pass-book for the month of July 1951 as well as the stock-book and the day-book and ledger for July. As regards the gate pass-book the defendant did produce it in the trial court, though at a late stage. The plaintiff objected to its reception and the trial court shut it out. It is urged nevertheless that a presumption should be drawn against the defendant that had the gate pass-book been produced, it would have gone against him. This is a most untenable proposition. As pointed out by Varadachariar J. in Sevugan v. Raghunatha, AIR 1940 Mad 273 at P. 275 when repelling a similar contention:

'It was argued on behalf of the respondents that the defendants could not seriously rely upon their alleged enjoyment because they had not produced their accounts showing the receipt of income by the temple from these lands. We are unable to appreciate this argument. Some of these accounts were filed before the First Survey Officer and marked as Exhibits O and P series. They were for some reason not produced before the Subordinate Judge's Court in time; when an attempt was made to produce them they were rejected by the learned Judge as having been produced too late. We do not wish to say anything against the learned Judge's exercise of discretion in dealing with tin's attempt of the defendants to produce their documents. But the penalty for this conduct is in our opinion only to deprive the defendants of the benefit of the evidence afforded thereby. It does not, however, lie in the mouth of the plaintiff who, as the learned Judge says, strongly opposed their production, to contend that an adverse inference ought to be drawn against the defendants from the non-production of these documents.'

It is therefore clear that no adverse inference can be drawn from the fact that the gate pass-book for the month of July 1951 was not produced by the defendant in time.

23. As regards the stock-register the defendant's case throughout has been that he did not maintain any stock book with regard to oil-cake. There is no evidence contra and it is not permissible to assume, as the trial court did that a stock-book must have been maintained and from that assumption proceed to draw a presumption that had it been produced, it would have told against the case of the defendant.

24. As regards the non-production of the daybook and the ledger for the month of July 1951, the defendant's case is that no transaction had taken place in July, and it is reasonable to assume that no entries would be found in his day-book and ledger. From the defendant's point of view those books were not relevant for the purpose of the case. It is certainly not incumbent on a party to produce documents which, according to him, have no bearing on the case. The learned Advocate, however, has relied on three decisions in support of his contention that it was incumbent on the defendant to have produced the day-book and ledger for the relevant period. These three cases are: Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi 32 Mad LJ 369: (AIR 1917 PC 6); Rameshwar Singh v. Bajit Lal 57 Mad L.J. 565: (AIR 1929 PC 95) and Hiralal v. Badkulal : [1953]4SCR758 .

25. In the first case the facts were as follows: The suit was filed for the recovery of monies advanced under a mortgage and, in the event of default, for the sale of the hypothecated properties. The properties were those of a Mutt. The defence in substance was that the loan over those properties, although granted by the head of the institution, was not granted in respect of any necessity of the Mutt itself. Their Lordships of the Privy Council pointed out that in a suit upon a mortgage, granted over the property of a Mutt by its head, the onus is upon the mortgagee to prove that the mortgage debt was incurred for a, necessary expense of the institution itself. Where, however, many years have elapsed since the mortgage was executed both the lender and borrower having died and the succeeding heads of the Mutt have recognised the mortgage debt, Court would be more easily satisfied than where the mortgage is of more recent date, or where the transaction, although remote, its validity has been the subject of challenge or dispute. Their Lordships also pointed out:

'There is a certain body of evidence that the Joan was made for the purpose of the Mutt; there is none to the contrary; out a more important question than even the balance of the oral evidence appears to be. What do the books of the Mutt disclose upon the subject? It is the habit of the heads or managers of these institutions to have books kept, and the effects are usually made in much detail and much elaboration. They form a correct record, on the financial side, of the history of the institution.'

26. It is in this context that their Lordships proceeded to make the following observation on which strong reliance is placed by the learned Advocate:

'A practice has grown up in Indian Procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the Courts the best material for its decision. With regard to third parties, this may be right enough: they have no responsibility for 'the conduct of the suit; but with regard to the parties to the suit it is, in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition. The present is a good instance of this bad practice. It is proved in the case by the first witness that the Mutt has regular fair day-books; they are not now before the Court; ledgers are also maintained in the Mutt.' These ledgers and day-books were in the possession of the defendants or those of them who were heads of the institution, and they are not put in evidence. The proposition that these defendants challenged was that the expenses incurred had been incurred for the Mutt and were necessary for its purposes. The best assistance to a Court of justice would have been a scrutiny of these documents, and their Lordships feel free to conclude that if they had been by their entries confirmatory of the defendants' view, the defendants would have brought them into Court.'

27. It will be seen that in that case the books admittedly maintained by the Mutt would have thrown much light on the transaction that was in question in that litigation and would have shown whether the mortgage debt had or had not been incurred for a necessary purpose. In the present case however, the books of the defendant would not have thrown any light on the alleged transaction of July 1951, for according to him there was none.

28. In the second case, the defendant in that suit had put forward inconsistent defences and withheld the best evidence in his possession by not producing the relevant documents. It was in this context that the Judicial Committee made the following observation:

'But the finding of the High Court on this point was further confirmed by the view the learned Judges there took of the attitude of the defendant in this matter. They were deeply impressed by the fact that his case had been altered; they were even more impressed by the fact that the best evidence in his possession which would have clearly helped the Court in identifying the land in dispute had been withheld. Neither village papers nor measurement khasras were produced; and the learned Judges say that when called for before them, the defendant took time to produce them and failed to do so. In the change of attitude on the part of the defence and in its failure to produce documents presumably available and probably decisive one way or another if examined, the learned Judges saw a design on the part of the defendant to take advantage of the abstract doctrine of the burden of proof upon a plaintiff in ejectment.'

29. In those circumstances their Lordships in agreement with the High Court considered that the excuses made by the defendant for the non-production of those documents, were unsatisfactory and unreliable, and, like the learned Judges of the High Court, they considered that their non-production was due to the fear that if produced, they would either establish the plaintiff's claim or destroy the defendant's case. Then their Lordships concluded:

'In their Lordships judgment the learned Judges of the High Court were well warranted in finding further confirmation of the plaintiff's evidence in the defendant's reticence and inconsistency.'

These animadversions can have no application to the facts of the present case. Here, there was neither design nor reticence nor inconsistency in the stand taken by the defendant with regard to the suit transaction. Design., reticence and inconsistency were all on the side of the plaintiff.

30. The third case was one in which the Supreme Court was dealing with a suit for recovery of amount due on the basis of adjustment of accounts. The defendants and the plaintiffs had mutual dealings and the defendants had signed an entry in the ledger of the plaintiffs acknowledging that, after adjustment of accounts, a certain sum was due by them to the plaintiffs. At the trial of the suit, however, Hiralal, one of the defendants denied the correctness of the amount found due and pleaded that he had signed in the plaintiffs' legder without understanding its implication. Further, during the trial Hiralal had given an evasive reply in cross-examination that he could not say whether there was any such entry in the defendant's books. It was in this context that their Lordships of the Supreme Court made the following observation:

'In these circumstances there was no justification for throwing out the plaintiffs' suit on the ground that the accounts were not explained to the defendants by the plaintiffs. The defendants had written the accounts in their own books from which the true balance could be ascertained. An inference from the statement of Hiralal can easily be raised that the balance-entry of Rs. 34,000/- also existed in his own books. Mr. Bindra tried to get out of this situation by urging that it was no part of the defendants' duty to produce the books unless they were called upon to do so and the onus rested on the plaintiffs to prove their case. This argument has to be negatived in view of the observations of their Lordships of the Privy Council in 32 Mad LJ 369: (AIR 1917 PC 6).'

31. The observations of their Lordships cannot apply to the conduct of the defendant in this case.

32. A case more in point is Bilas Kunwar v. v. Desraj Ran jit Singli, ILR 37 All 557 at p, 566: (AIR 1915 PC 96 at p, 98) wherein their Lordships of the Privy Council stated the true position thus:

'The High Court Judges attach great significance' to the non-production of the books showing the accounts of the general estate, and appear to draw an inference therefrom adverse to plaintiffs' claim; any such inference is, in their Lordships' opinion, unwarranted. These books do not necessarily form any part of the plaintiffs' case; it is of course possible that some entries might have appeared therein relating to the bunglow. But it is open to a litigant to refrain from producing any documents that he considers irrelevant; if the other litigant is dissatisfied, it is for him to apply for an affidavit of documents, and he can obtain inspection and production of all that appears to him in such affidavit to be relevant and proper. If he fails so to do, neither he nor the Court at his suggestion is entitled to draw any inference as to the contents of any such documents ...... It is for the litigant who desires to rely on the contents of documents to put them in evidence in the usual and proper way; if he fails to do so, no inference in his favour can be drawn as to the contents thereof.' That is precisely the position, in the present case. As pointed out by the trial court itself, the plaintiff did not require the defendant to produce the daybook and ledger for his inspection; and having failed to do that, he cannot invite the court to draw an adverse inference from the fact 'that the defendant had not prodcued his day-book and ledger relating to the relevant period.

33. The next contention on behalf of the appellant is based on Ex. A-4, a certificate of posting bearing the date 13-7-1951. The argument is that this document is presumptive evidence of the bill dated 6-7-1951 having been sent to the defendant on the 13th. As to this, the first appellate Judge refused to believe P.W. 1's evidence that he had sent the bill because, if the transaction were true, P.W. 1 would have sent the bill to the defendant by registered post. The learned Judge therefore believed the defendant's version that he had never received any such bill. It is, however, contended by the learned Advocate for the appellant that the certificate of posting is 'prima facie' evidence that sonic letter had been sent to the defendant on 13-7-1951 and in the ordinary course, of events, the letter would have reached the defendant on the next day. For this proposition he relies on the presumption under Section 114 of the Evidence Act. Section 114 relates to presumptions of fact and such presumptions may be drawn, in the language of the section, 'in their relation to the facts of the particular case.' Only upon proof that a letter had been actually posted, can a presumption arise of the letter having reached its destination in due course. In this case the certificate of posting Ex. A-4 cannot be held to be proof of the actual posting of the bill in question. Like other documents produced in this case by the plaintiff. Ex. A-4 is not free from suspicion. It shows that two names are noted there, the first name is someone else's and the second name 1980 Andh. Pra. D-F./22 is that of the defendant. These names were not written by the postal authorities but by some one on behalf of the plaintiff. The postal stamp bearing the date 13-7-1951 is below these two entries. In my opinion it is more than likely that the second entry in this certificate of posting must have been added subsequently, to suit the exigencies of this case. It is also worthy of note that in Ex. B. 19 sent on 10th July, there is not even a hint of a bill having been sent to the defendant on the 13th; while in Ex. B-23 sent on 31st July and In the plaint filed on 22nd October although it is mentioned that a bill had been sent by post on 13th July, it is not staled that the bill had been sent under a certificate of posting. In these circumstances Ex. A-4 has no evidentiary value, and the lower appellate court was amply justified in brushing it aside.

34. On a review of the evidence and the probabilities of the case, I have no hesitation in agreeing with the lower appellate court that the plaintiff has failed to prove his case by good and reliable evidence. I hold that the conclusion reached by the lower appellate court, far from being erroneous, was the only reasonable conclusion that was possible on the state of the evidence. In the re-suit this second appeal fails and is dismissed with costs.


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