1. The plaintiff, a dealer in iron and brass vessels, filed a suit for the recovery of a sum of Rs. 466-15 which is inclusive of interest at 6 p.c. per annum on the amounts due on sale of goods. The transactions are four in number and evidenced by bills Nos. 3, 5, 7 and 9 in Ex. A-1. Pursuant to a requisition for supply under Ex. A 5, goods under bill No. 3 were sent by lorry under Ex. A 4. Goods under bill No. 5 were sent under cover of lorry receipt Ex. A. 11. Certain adjustments as per Ex. B. 6 (the pattial of the defendant) were made by the plaintiff in this bill for goods supplied by the defendant. Goods under bill No. 7 were sent by lorry under Ex. A. 10. Even so at the request of the defendant under Ex. A. 12, goods were supplied under bill No. 9 and Ex. A. 8 and A. 12 also supporting such a supply.
2. The goods supplied under bill No. 7 is a transaction which is admitted, but is said to be a cash transaction. The learned District Munsif who tried the suit in an elaborate discussion of his on the oral and documentary evidence, found the following--
(a) Ex. A. 1 which is the bill took containing all the suit bills is a book which is regularly maintained in the course of business;
(b) Ex. A. 1 is genuine in view of the fact that the defendant himself has admitted the dealing as is seen from Ex. B. 6 dated 29-8-1962 and that it cannot be said that earlier bills 3 and 8 in Ex. A. 1 have been brought about subsequently.
3. In fact, the learned District Munsif was of the view that the plaintiff on whom the burden lay, discharged his onus and found as a matter of fact that the dealings are true and the amount claimed is correct. These are findings of fact and no question of jurisdiction arises.
4. Mr. Sharfuddin for the petitioner, however, elaborately argued on the question of presumption arising under the Evidence Act for non-production of account books. He referred to me paragraph 8 of the written statement which runs as follows:
"This defendant does not admit the truth, validity and genuineness of the bill book filed into court. The entries therein are no genuine and this defendant has reasons to think that the bills mentioned in the bill book would not have been carried out in the accounts of the plaintiff. The plaintiff has got accounts for his business and the account if produced will prove this defendant's case". He invited my attention to the following statements made by the plaintiff in the witness box:
"I have accounts of such business. Ex. A. 1 if the bill book. There is a separate ledger page allotted to the defendant in my business accounts. I have not produced my account books into court."
5. Later he swore in the re-examination:
"I have brought the accounts to court". The learned Judge considered this aspect and held that the plaintiff is just relying upon the entries in the bill book without any regular ledger and day book. The bill book Ex. A. 1 has already been been held to be one kept in the regular course of business.
(3) Learned counsel for the petitioner would however state that the learned District Munsif erred in not drawing an adverse inference by reason of the plaintiff suppressing the account books which he said he was maintaining. Prima facie, there is force in this contention; but each case has to be considered on its merits. Here, Ex. A 1 has been found by the learned District Munsif to be genuine and kept in the regular course. This finding of fact does not appear to be perverse or based on no evidence. In revision though powers under S. 25 of the Provincial Small Cause Courts Act are wider this court cannot convert itself to an appellate court to sift the finding of fact by lower courts. Anantanarayanan J. (as he then was) in Munuswami Naidu v. Kanniah Naidu, , observed as
"Learned counsel refers to the indisputable fact that section 25 of the Provincial Small Cause Courts Act, IX of 1887 is wider in its terms and scope than S. 115 C.P.C. This is certainly so, and the language of section 25 of the Provincial Small Cause Courts Act prima facie may even justify an interference by this court upon a question of fact, no less than upon a question of law. But I take it that the broad principle must be that this revisional power will not be used by this court as though it were an appellate power..even if this court is of the view that a particular conclusion upon facts could well have been different, that would ordinarily be no ground for the exercise of revisional jurisdiction. Otherwise, as I pointed out, this section would, in practice, he invoked and worked as a section providing for regular first appeals."
6. No doubt, entries in account book by themselves are not evidence unless acceptable proof aliunde is forthcoming. This is so under section 34 of the Evidence Act. I respectfully agree with the ratio inMathilda Sice v. Fritz Gaehele, AIR 1926 Mad 955, and Bahadur Singh v. Padmachand, AIR 1933 Lah 384. These decisions were cited before me. Mr. Sharfuddin goes one step further. The court below ought to have drawn an adverse inference under S. 114 of the Evidence Act for the non-production of account books referred to by the defendant in his evidence. The lower court, however, has accepted the bill books as genuine and as being kept in the regular course of business.
7. Mr. Sharfuddin invited my attention to the decision of the Supreme Court in Kundanlal v. Custodian Evacuee Property, Bombay AIR 1961 S.C. 1316. This was a case where principally the question of burden of proof of a litigant was dealt with in case a negotiable instrument is attacked for want of consideration. Their Lordships observed as follows--
"A plaintiff, who says that he had sold certain goods to the defendant and that a promissory note was executed as consideration for the goods and that he is in possession of the relevant account books to show that he was in possession of the goods sold and that the sale was effected for a particular consideration, should produce the said account books, for he is in possession of the same and the defendant certainly cannot be expected to produce his documents. In those circumstances, if such a relevant evidence is withheld by the plaintiff, Section 114 enables the court to draw a presumption to the effect that, if produced, the said accounts would be unfavourable to the plaintiff. This presumption, if raised by a court can under certain circumstances rebut the presumption of law raised under section 118 of the Negotiable Instruments Act. Briefly stated, the burden of proof may be shifted by presumptions of law or fact, and presumption of law or presumptions of fact may be rebutted not only by direct or circumstantial evidence but also by presumptions of law of fact. We are not concerned here with irrebuttable presumptions of law."
8. This was a case which arose under section 118 of the Negotiable Instruments Act, and the main ground of attack was that the promissory note was not supported by consideration, and that the sale of the goods which formed the foundation of consideration has to be proved by independent evidence by production of account books. Their Lordships therefore held in such circumstances if relevant evidence is withheld by the plaintiff, section 114 of the Evidence Act enables the court to draw a presumption to the effect that if produced the said accounts would be unfavourable to the plaintiff. Here, this is not a case in which any promissory note was executed by the defendant in favour of the plaintiff. On the other hand, bills were made out by the plaintiff in the usual course of business and by independent documentary evidence, the plaintiff sought to establish that there was a sale of goods and the price of the goods was not paid. The ratio in the Supreme Court decision as above, does not strictly apply to the facts of this case.
(4) In Devji Shivji v. Mohanlal, , their Lordships held that if a party to an action is in possession of the best evidence, which one way or other is decisive on the fact in issue then there is a heavy duty cast upon him to assist the court with the same and that notwithstanding what the abstract doctrine of the onus of proof may suggest about it. And in case he fails to produce it without any reasonable justification, whether called upon to do so or not, then in law it is open to the court to draw an adverse inference against him for that reason. Here again, it is a case wherein the best evidence was not made available. That is not so in the case here. The plaintiff has produced acceptable evidence and the learned District Munsif, after appreciating the same accepted it and decreed the suit, I do not think that the defendant has made out a case of suppression of documents.
9. It is not in all cases that non-production of account books by itself may be pressed into service as a factor to disbelieve a litigant's case and characterise his conduct as fraudulent. Each case has to be decided on its own merits. There are cases, as in the instant case, wherein alternative acceptable evidence may be made available to the court to establish the relevant fact. In the case under review, the dealings and transactions have been held to have been proved by the production of the bill books which have been accepted by the lower court as genuine and not made out for the occasion.
(5) I may at this stage consider the evidence as disclosed in this case through bills and consider the same in juxtaposition to the evidentiary value of account books. It is normal that account books kept in the regular course of business of a tradesman is merely a compilation of all the details of his dealings from day-to-day and is practically a summary of such transactions written up in bills, vouchers, anamath chits etc. Therefore it is that under S. 34 of the Evidence Act, the entries in books of account even though regularly kept in the course of business, though relevant, are not alone sufficient evidence to charge any person with liability. Therefore, the account books by themselves do not stand on any better footing than a bill or a voucher issued by the plaintiff in the regular course of business.
10. Stroud's Judicial Dictionary explains a "bill" as one of the most general that can be used where it is not confined by other terms. In every kind of business the word "bill" occurs as representing any writing. While explaining "books of accounts" Stroud maintains:
"It means such books of account as are usual in the business, and do not extend to 'letters, cheques, and vouchers from which books of account can be made up' ".
11. Essentially therefore, books of account and bills are distinct and separate. They both suffer from the same infirmity, namely, they do not prove by themselves. If therefore, evidence is available to prove a case based on the bills and if such evidence produced has been accepted by court, as in this case, I am not persuaded to accept the argument that I should draw an adverse inference as against the plaintiff for the non-production of the account books, which, as already stated, are merely a compilation of bills, vouchers etc.
(6) It is also seen that when the plaintiff was in the witness box, the challenge that was extended to him in paragraph 8 of the written statement was not pursued. The defendant stated that the dealing would not be reflected in the account books. But it is surprising however that is cross-examination no specific question was put to him to the effect that the account books when produced would not find the suit transactions. In Mst. Bilas Kunwar v. Desraj Ranjit Singh 29 Mad LJ 335 : (AIR 1915 PC 96), their Lordships of the Privy Council observed as follows--
"The High Court Judge 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 the plaintiff's claim; any such inference is in their Lordships' opinion, unwarranted. Those books do not necessarily form any part of the plaintiff's case, it is of course possible that some entries might have appeared therein relating to the bungalow. 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."
12. In Bansnarain v. Chandrani Kuer, AIR 1944 All 130 a Division Bench of the Allahabad High Court held that from a mere admission by a party that his father kept accounts and left bahi khatas, no inference can be made against the party by their non-production unless they were called by the opposite side. I have already adverted to the fact that even a specific question to the effect that the account books would not reflect these transactions was not put to the plaintiff in the box, even though pleaded. This is very significant.
(7) Learned counsel for the respondent maintains that the presumption in section 114 of the Evidence Act is permissive as the language itself says "The court may........... 'For this purpose, he has invited my attention to a catena of decision, namely, Sandanam Pillai v. Somasumdaram Chettiar, 1937-1 Mad LJ 364 :(AIR 1937 Mad 436) In re M. Jermiah, AIR 1957 Andh Pra 611, Asiatic Steam Navigation Co., Ltd. v. Jethalal Dharamshi and Co. , Emperor v. Sibnath
Banerjee, AIR 1943 F.C. 75 and Dasuram Mirjmal, Firm v. Brahmadutta Bajaj, AIR 1963 Assam 41. In 1937-1 Mad LJ 364 :(AIR 1937 Mad 436), Varadachariar J. held that the inference from the non-production of the account books can only be drawn in the light of the other circumstances appearing in the case. In AIR 1957 Andh Pra 611, Subba Rao C.J. and Bhimasankaram J. observed as follows--
"As the section only enables a rule of guidance evolved out of human experience, it gives an option to the Judge whether to draw such a presumption or not having regard to the circumstances of each case". In , their Lordships reiterated the above
principles that the presumption that the Court is expected to make under Section 114 is a permissive presumption in the sense that the court may in a proper case presume so.
(8) Thus, section 114 being a rule of guidance and the presumption arising therein being a permissive presumption, it is not absolutely obligatory on the part of the court to draw such presumption in every case where account books are not produced; but when other evidence which is equivalent to or which can be characterised as substitute for account books are available for the Court to come to a reasonable conclusion thereat, it could do so.
(9) Even though this revision is under section 25 of the Provincial Small Cause Courts Act, I have stated that I cannot sift the evidence as if it is an appellate court. The lower court has found as a fact that the bills produced are acceptable and they could be acted upon. The principles governing the application of section 115 C. P. C. equally apply to the principles governing the application of section 25 of the Provincial Small Cause Courts Act. In Manindra Land and Building Corporation Ltd.. v. Bhutnath Banerjee , their Lordships of the Supreme Court held:
"It is not open to the High Court to question the findings of fact recorded by a subordinate court in the exercise of its revisional jurisdiction under Section 115 of the Code, which, it is well settled, applies to cases involving questions of jurisdiction i.e., the questions regarding the irregular exercise of non-exercise of jurisdiction or the illegal assumption of jurisdiction by a court and is not directed against conclusion of law or fact in which questions of jurisdiction are not
involved...................................This legal position is not disputed for the respondents."
13. No question of jurisdiction is involved in this case excepting appreciation of facts. I am therefore obliged to accept the findings of the lower court, though initially I felt that there was some force in the arguments of the learned counsel for the petitioner. In the result the judgment of the learned District Munsif is confirmed and the Civil Revision Petition is dismissed, but in the circumstances there will be no order as to costs.