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Mt. Har Dei Vs. Sri Kishun and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All60
AppellantMt. Har Dei
RespondentSri Kishun and anr.
Excerpt:
.....in dwarka prasad v. one further question suggests to us that might well have been asked, and that is the direct question: it was very definitely found in that casa that whatever particular words the plaintiff may have used the sum total of his statement left it in doubt whether he was speaking from personal knowledge or without personal knowledge, and the failure of the defendant to cross-examine him to show that he had not personal knowledge either about all or any of the words, was held sufficient to give the plaintiff the benefit of the doubt, and he might be held to have personal knowledge......we find that there is not the slightest hint of attempt to show that jagannath prasad had not personal knowledge of the accounts and of the transactions which they represent. we invited mr. damodar das to tell us how he would have examined the witness jagannath prasad if he had been appearing for the plaintiff, and he was unable to suggest to us that he would have questioned him in any other way than the way in which ha was questioned. one further question suggests to us that might well have been asked, and that is the direct question:have you personal knowledge of the transactions which are entered in these accounts10. we do not think that it would have been manifestly impossible, unless at any rate he were challenged about particular items in cross-examination to question him.....
Judgment:

Boys, J.

1. This is a second appeal arising only out of the question of the proper application of Section 34, Evidence Act. The facts are simple. The plaintiff sued the defendant on a balance of account for three years and claimed a sum of Rs. 1,158-2-0. Certain other issues arise which we need not mention except one which deals with the question of whether the plaintiff was the owner of the firm or not, and had the right to sue. The plaintiff supported her case by the production of bahis and by the evidence of her munib. The trial Court dealt with the question of whether the accounts had been proved, as follows:

The plaintiff's witness Munib has come into the witness-box and has said that Rs. 1,089 is inserted in the bahi khata which is the balance drawn against the defendant; and then he has said that Rs. 30 is of interest and Rs 1-4-0 is of registration and notice expenses; thus the whole amount comes to Rs. 1,120-11-0. This is the whole evidence of the plaintiff about the amount. The plaintiff ought to have shown (and all the more so when the defendant has denied the fact that there is any sum due) by some independent 'evidence that the entries represent real and honest transactions and that the moneys were paid in accordance with those entries. The plaintiff has not shown this and thus the burden of proof is not discharged by him. Issue decided accordingly.

2. It dismissed the suit. We quote this finding of the trial Court because the lower appellate Court has practically followed in its footsteps. In this latter judgment the learned Judge says:

The plaintiff's witness merely road out the entry from the bahi khata and no evidence was adduced on behalf of plaintiff that the transaction mentioned in the account-books of Ram Prasad Raghunath Das had in reality taken place between the said firm and the defendants. On the mere strength of entries in account-books a decree cannot be passed when the defendant puts the plaintiff to proof and denies his liability for payment of any sum.

3. The learned Judge accordingly dismissed the appeal. We were not satisfied with this approach to the point calling for decision, and we invited counsel for the appellant to give us a transliteration and translation of the Munib's statement, for even so much of it as was noted in the judgments of the lower Courts suggested that the case might be at least analogous to the decision in Dwarka Prasad v. Sant Bux [1896] 18 All. 92, a decision which has stood unshaken since it was pronounced.

4. Looking at the statement of Munib Jagannath Prasad we are without doubt of opinion that it has not been correctly appreciated and that its consideration has not been approached from the proper legal standpoint. Amongst other things he says:

The firm of the defendants used to send goods to the firm of the plaintiffs for sale and also used to purchase goods through the plaintiffs' firm. Whatever goods were purchased or sold used to be entered in the bahi khata.

7. After quoting certain of the details of the entries he continues:

In this way a sum of Rs. 1,120-11-0 is entered in the bahi khata as due from the defendants, and the claim is for the same sum.

8. He further adds : 'Bahi khata is in the handwriting of the witness.' Again later:

all the accounts were sent to the defendants-by registered post. The witness himself had sent the accounts.

9. Now, there cannot be a shadow of doubt but that these statements suggest very strongly indeed that the Munib himself was aware bf all, or most at any rate of, the transactions entered in the account book. When we turn to the cross-examination we find that there is not the slightest hint of attempt to show that Jagannath Prasad had not personal knowledge of the accounts and of the transactions which they represent. We invited Mr. Damodar Das to tell us how he would have examined the witness Jagannath Prasad if he had been appearing for the plaintiff, and he was unable to suggest to us that he would have questioned him in any other way than the way in which ha was questioned. One further question suggests to us that might well have been asked, and that is the direct question:

Have you personal knowledge of the transactions which are entered in these accounts

10. We do not think that it would have been manifestly impossible, unless at any rate he were challenged about particular items in cross-examination to question him seriatim about one transaction after the other for a period of three years to which the accounts related. It [is, in our view, manifest that the only. fair interpretation of his evidence is that he was speaking of matters of which he had a personal knowledge, and in face of the fact that no attempt was made to challenge that view in the cross-examination which was solely limited to the question of the ownership of the firm, that interpretation must stand. We have been asked to differentiate this case from Dwarka Prasad v. Sant Bux [1896] 18 All. 92, in that case the plaintiff, who was the sole witness as regards certain items, was corroborated as regards other items by another witness Balbhaddar, and further that he did actually speak of particular items. But there is no doubt whatever that the principle of the decision applies. It was very definitely found in that casa that whatever particular words the plaintiff may have used the sum total of his statement left it in doubt whether he was speaking from personal knowledge or without personal knowledge, and the failure of the defendant to cross-examine him to show that he had not personal knowledge either about all or any of the words, was held sufficient to give the plaintiff the benefit of the doubt, and he might be held to have personal knowledge. Exactly the same applies in the present case. We think that the plaintiff's suit should have been decreed. Setting aside all the decrees of I the lower Courts we decree the plain-I tiff's suit with costs throughout.


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