K.K. Sharma, J.
1. This is an appeal by the defendant Ramkishen against the appellate judgment anddecree of the learned Additional District Judge, Jaipur dated 9-2-1952. The suit out of which this appeal has arisen was filed by Respondent Balabhdas and others for the recovery of Rs. 274/- from the defendant appellant. Out of this amount Rs. 230/-were claimed as principal and the remaining as interest and cost of notice. It was alleged that the plaintiff was a Kachha Ahrtiya and the defendant carried on certain transactions in yarn and gold Mohars in the Ahrat of the plaintiff. It was alleged that five bales of yarn were purchased and sold in the Ahrat of the plaintiff and that there was a profit of Rs. 143/12/- to the defendant on that account. Itwas further alleged that 100 gold Mohars were purchased and sold by the defendant in the plaintiff's Ahrat as detailed below :
25 goldMohars purchased at the rate of Rs. 74/8/- perMohar.
25 goldMohars purchased at the rate of Rs. 74/9/- perMohar.
50gold Mohars purchased at the rate of Rs. 71/10/- perMohar.
50 goldMohars sold at the rate of Rs. 68/- per Mohar.
It was alleged that crediting the profit and the amounts received as sale proceeds of 100 gold Mohars a sum of Rs. 230/- remained due to the plaintiff from the defendant which was payable together with interest at the rate of -/10/- P. M. as agreed upon and the cost of notice.
2. The defendant denied that he had entered into any transaction in the Kachha Arat of the plaintiff. The court of first instance by its judgment dated 25-4-1950 found against the plaintiff and dismissed the plaintiff's suit. On appeal the learned Additional District Judge, Jaipur came to the contrary conclusion. He held that the defendant had entered into the transaction given in the plaint in the Kachha Arat of the plaintiff and that the defendant was liable for Rs. 230/- principal together with interest and cost of notice. He consequently allowed the appeal and gave a decree to the plaintiff for the recovery of Rs. 274/- and future interest at 4 per cent P. A. from the date of the institution of the suit till the date of recovery. The defendant has come in second appeal to this Court.
3. The plaintiff respondent could not be personally served and so there was a substituted service ordered against him which has been done. He has not appeared and the appeal proceeds ex parte.
4. I have heard Shri H. G. Mathur on behalf of the appellant. It has been argued by Mr. Mathur that the plaintiff was only a Kachha Aratiya, and that it was his duty to prove as to from which person the purchase had been made and to whom the sale had been made. It was argued that it was also the duty of the plaintiff to prove as to what amount had been paid on account of the purchase and what amount had been received on account of the sale and to whom the purchase price had been paid and from whom the sale proceeds were received. It was argued that the decree could be passed in his favour.
5. I have considered the arguments of the learned counsel and have also gone through the record of the case and certain authorities produced by the learned counsel for the appellant. It is no doubt admitted in the plaint that the plaintiff was the Kachha Aratiya. The difference between the Kachha Aratiya and the Pacca Aratiya has been made clear in a Division Bench ruling of Allahabad High Court in the case of Shanti Lal v. Madan Lal, AIR 1954 All 789 (A). It has been laid down that:
'The basis of the distinction between a 'Kaccha' and a 'Pakka aratia' is --
(1) 'Kacha aratia' acts as an agent on behalf of his constituent and never acts as a principal to him.
(2) The person with whom he enters into a transaction on behalf of his constituent is either brought into contact with the constituent or at least the constituent is informed of the fact that the transaction has been entered into on his behalf with such and such other person.
(3) Although the 'kachha aratia' may not communicate the name of his constituent to the third party, he informs the constituent of the name of the party.
(4) In the case of a 'Pakka aratia', the agent makes himself liable on the contract not only to the third party but also to the constituent and he does not inform his constituent as to the person with whom he has entered into the contract on his behalf.'
6. It is clear that in the present case it was the duty of the plaintiff (Kachha Aratiya) to tell the defendant as to from whom the purchases had been made and to whom the sales had been made. He ought to have proved also as to what amount he actually paid to the sellers and what amount he received from the purchasers in the defendant's account. There is not a word in the evidence of the plaintiff to show as to from whom the purchases were made and to whom the sales were made and as to whether anything was paid to the sellers on account of the purchases and anything was received from the purchasers on account of sales.
All that the plaintiff has done is to prove certain entries from his account-books. The relevant entries are from the Sauda Khata and Sauda nond. Even if it be taken that these two books were regularly kept mere entries in the books of account would not be sufficient to charge the defendant with liability and there should have been evidence to corroborate the entries. In the present case no such evidence has been produced. It was laid down inthe case of Hiralal v. Ram Rakha, AIR 1953 Pepsu 113 (B), that:
'The Rule in Section 34 of the Evidence Act is sublet to the salient proviso that such entries shall not alone be sufficient evidence to charge any person with liability. It is not, therefore, enough merely to prove that the books have been regularly kept in the course of business and the entries therein are correct. It is further incumbent upon the person reiving upon those entries to prove that they were made in accordance with facts.'
I perfectly agree with the view taken in this ruling.
7. The learned lower court has said that because the defendant had signed the contract forms of sale as well as purchase and therein the rates have been given, therefore, it was not necessary that it should have been proved as to whether anything was paid to the sellers on account of the defendant and anything was received from the purchasers. Thedocument on which the learned lower court has relied were mere contract forms.
It could be justifiably held that the defendant agreed to purchase and sell at the rate given in thosecontract forms. But the contract forms were alone not sufficient to prove that the transactions were actually entered into and that anything on account of purchase was paid to the sellers and anything on account of sale was received from the purchasers. I do not think that the plaintiff has succeeded in the present case to prove that the defendant was liable for the amount claimed.
8. The appeal is allowed ex parte, the decreeof the lower appellate court is set aside and the suit as dismissed with costs in all the courts.