1. This appeal is against the decision of the Additional District Judge, Umaria, in civil suit No. 54 of 1954, decided on 30th December 1955. The plaintiff is the appellant whose suit for Rs. 5000/- against the two defendants failed in the Court below.
2. According to the plaintiff, a sum of Rs. 5000/- was borrowed by the two defendants on the 15th June 1952. He produced in support of his case his own account books' showing an entry to that effect. The defendants denied the loan and their case was accepted in the Court below.
3. In this appeal the short question is whether the plaintiff had succeeded in proving his case. No doubt, the account books were produced, but the munim, who wrote them, was not examined. Under Section 34 of the Indian Evidence Act, account books by themselves cannot be sufficient and therefore some other evidence was necessary. This evidence consists: of the plaintiff and of persons who were said to be present at the time the loan was given. The trial Court did not believe these witnesses. The first corroborating witness is a pan seller, Man Mohan Singh (P. W. 1), who says: that he was called to the shop of the plaintiff at about 8 or 8.30 in the night some two and a half years before his evidence, to bring six pans. He also says that he saw the plaintiff and Mohammad Hanif (defendant No. 1) seated there and that the plaintiff paid Rs. 5,000/- to him (Mohammad Hanif) in his presence. This evidence is altogether too artificial. For a pan-seller to remember an incident of this character for two and a half years is almost impossible. We do not say that he could not remember that some money was paid but for him to remember that he had to take six pans and that the persons present in the shop were such and such is indeed a feat of memory. His evidence has also been disbelieved in the Court below. He is described as a chance witness and indeed he is a chance witness.
4. The next corroborating witness is Nizamuddin (P. W. 5) who says that he had gone to the shop of the plaintiff to offer his prayers and had stayed there afterwards. There is no reason why this witness should not have completed his prayers in his own house or at the mosque which is only 100 paces away from his house. There is nothing to show what special attraction the plaintiff's shop had for the purposes of offering prayers. No doubt, people do sometimes offer prayers if they are at the house of another, but we do not believe the statement of this witness that he went there for this purpose. He also names all the persons present and the exact amount which was paid. He recalls that it was a Sunday and that it was the month of Ashad. All this on such a chance visit leaves us in doubt whether he is not an artificial witness brought to bolster up a false case. We do not see anything in his evidence which would entitle us to accept his testimony when it has been rejected in the Court of first instance.
5. The third corroborating witness Ram Kripal (P. W. 2) is a tenant of the plaintiff, and his statement is interested. According to him, he was seated in the shop of the plaintiff at 8 or 8-30 p. m. when Nizamuddin went there for the purpose of prayers and that Mohammad Hanif (defendant No 1) asked for Rs. 5,000/- from the plaintiff and it was paid to him by the plaintiff. He even remembers that Man Mohan Singh (P.W. 1) came there with pans. He is a Sonar who lives in a portion of the plaintiff's house on a rent of Rs. 8/- per month. Neither his status nor his deposition inspires confidence.
6. Indeed, the entire evidence was duly considered by the trial Court and rejected. It is a kind evidence on which any claim of any man can be supported, and there would be no means on the part of the defendants to controvert it.
7. It was, however, submitted that the defendants admitted in the witness-box that they maintained account books and that there was no entry in respect of this sum therein, and it was contended on the authority of the decision of the Supreme Court reported in Hiralal v. Badkulal 1953 SCR 758: (AIR 1953 SG 225) (A) that an adverse inference should be drawn against the defendants as was done in that case. It is, therefore, necessary to see whether the present case is covered by the Supreme Court case.
8. In that case their Lordships drew an adverse inference against the defendants from their failure to bring their account books into Court, and following the decisions of the Privy Council reported in Murugesam Pillai v. M. D. Gnana Sambandha Pandora Sannadhi, ILR 40 Mad 402 : (AIR 1917 PC 6KB) held that an adverse inference should be drawn against the defendants. The law on the subject of presumptions arising from failure to produce documents and books of account has been laid down in many decisions by their Lordships of the Priyv Council. In Mt. Bilaskunwar v. Desraj Ranjit Singh ILR 37 All 557: (AIR 1915 PC 96) (C) their Lordships laid down the law as follows:
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 appear 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. There is no ground for any inference such as is made in the High Court that the books, if produced, would have shown rent credited to Jagmag or set off against some claim against her.
The same proposition was reiterated by their Lordships of the Privy Council in Motilal v. Kundanlal, AIR 1917 PC 1 (D).
9. In two other cases, however, their Lordships of the Privy Council laid down a slightly different approach to the problem. In Murugesam Pillai v. M. D. Gnana Sambandha Pandara Sannadhi (B) (supra) their Lordships dealing with the tactics of litigants declining to bring the best evidence, though available, into the Court observed as follows:
'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 fee right enough; they have no responsibility for the conduct of the suit; but with regard to the parlies to the suit, it is, in their Lordships' opinion, aninversion 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'.
Their Lordships after laying down the law in these words drew an adverse inference against the party who had failed to produce the best evidence. This case was followed and approved by their Lordships of the Privy Council in Rameshwar Singh v. Bajit Lal AIR 1929 PC 95 (E). A summary of their Lordships' dictum is reproduced in the head-note as follows:
'Best evidence not produced though available raises adverse presumption'.
10. The last two cases were the foundation of the decision of their Lordships of the Supreme Court in Hiralal v. Badkulal, (A) (supra). It, therefore, becomes necessary to see how the Supreme Court case is to be applied to the facts of the present case. Both in Murugesam Pillai v. M. D. Gnana Sambandha Pandara Sannadhi, (B) and Rameshwar Singh v. Bajit Lal, (E) (supra) the evidence which was required was from an accounting party. In the first case there was a mutt, the Sarbarakar of which had spent some money which he claimed was spent for purposes' of the mutt. It was proved in the case that the sarbarakar maintained books of account and his failure to bring them into Court to show how the money was spent was taken note of & an adverse inference was drawn against him. Similarly, in Rameshwar Singh v. Bajit Lal (E) (supra) the question was about the best evidence which would have helped the Court in identifying the lands in dispute. It was proved in the case that the defendant had the village papers and other documents which would have thrown lights upon the matter in dispute. He was asked to produce them and he took time to do so. Subsequently, the defendant failed altogether to produce those documents and the High Court saw in his conduct a design to take advantage of the abstract doctrine of burden of proof upon a plaintiff in an ejectment case. Their Lordships following the case of Murugesam Pillai, (B) (supra) held that an adverse inference was rightly drawn by the High Court against the defendant in that case.
11. In the Supreme Court also the question was not of mere production of account books in possession of a party. Two persons Hiralal and Bhaiyalal had signed an account stated in the books of the plaintiff showing their indebtedness in the sum of Rs. 34,000/-. It was submitted by the defendants that the accounts of the plaintiff's shops were not explained to them and that in their own books there was only a liability of Rs. 10,000/- to Rs. 15,000/-. The signatures on the account stated were said to have been made to avoid immediate litigation and also because the plaintiff had sworn that no suit (would be brought. Their Lordships also noted that it was admitted that the account books were written by both the parties and thus the defendants' account books were available if they had chosen to bring them into Court. In the presence of their admission of the correctness of the account stated in the plaintiff's books their Lordships felt that there was a burden on the defendants of proving their own assertion that only Rs. 10,000/- to Rs. 15,000/ were then due, and the best evidence of that would have been their own books of accountwhich they had refrained from producing. The inference drawn therefore was that they were keeping back their books of account which, if produced, would have gone against their case.
12. From these cases it is quite clear that there is a different approach to the problem accord-ding to the relevance of the books of account. If a party considers a particular document to be irrelevant and does not produce it, no adverse inference can be drawn against that party ulness the other side asks him to produce that document. In the absence of any such demand mere failure to produce a document cannot lead to an adverse inference against a party. But this is not true of those cases in which a party sets up a case, the best evidence of which is in a document in his possession. If such a document is not produced, the Court can legitimately hold that it is being kept back as part of a design and that if it were produced it would go against that party. It is on the latter principle that the cases in Murugesam Pillai v. M. D. Gnana Sambandha (B), Rameshwar Sing v. Bajit Lal (E) and Hiralal v. Badkulal (A) (supra) were decided. The other cases were decided on the other principle which we have mentioned.
13. The Privy Council cases were considered and reconciled by Bose, J. (as he then was) in Premraj v. Nathmal, ILR (1936) Nag 142 at p. 145: (AIR 1936 Nag 130 at p. 131) (F) and Kalloo v. Rishabh Kumar 1951 Nag LJ 544 at pp. 545 and 546: (AIR 1951 Nag 347 at pp. 348 and 349) (G). In our opinion, the distinction made by Bose, J. was, and we say it respectfully, quite accurate.
14. In our opinion, the Supreme Court case cited and the Privy Council cases on which it is based do not apply to the facts of this case. Here the defendants merely made a statement that there was no entry in their own books of account and also added that they maintained books of account. They were not relying upon their own books of account in support of their case. They only answered a query and they did not produce the books of account, because they considered them to be irrelevant. The case had to be decided primarily upon the evidence led by the plaintiff and unless that evidence was good the defendants were not called upon to produce their own books without the plaintiff having asked for them. If the plaintiff wanted to see their books of account he could have asked them to make an affidavit of documents in their possession or power and also could have asked for inspection and discovery of documents. Without the plaintiff doing that we do not think he was entitled to rely upon a presumption arising from the failure of the defendants to produce their books of account in Court. This case does not fall within the dictum of the Privy Council in the two cases on which the Supreme Court case is based; nor upon the dictum of the Supreme Court. It falls within the dictum of the other two , cases of the Privy Council viz., Mt. Bilas Kunwar v. Desraj Ranjit Singh (C) and Morilal v. Kundan Lal (D), (supra). We do not think that the Supreme Court compels us to draw the presumption in the present case.
15. We have already stated that we see nothing against the view taken by the learned trial Judge of the evidence in this case, and we must, therefore on accepted principles, reject this appealas being worthless. It is accordingly dismissed withcosts.