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Duni Chand Vs. Munshi Amar Nath and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 21 of 1952
Judge
Reported inAIR1953HP68
ActsProvincial Small Cause Courts Act, 1887 - Sections 3 and 25; ;Himachal Pradesh (Courts) Order, 1948; ;Evidence Act, 1872 - Section 34
AppellantDuni Chand
RespondentMunshi Amar Nath and ors.
Appellant Advocate G.L. Verma, Adv.
Respondent Advocate Kanwar Dalip Singh, Adv.
DispositionRevision dismissed
Cases ReferredMathura Prasad v. B. B. and C. I. Rly. Co.
Excerpt:
- .....under section 25, provincial small cause courts act, 1887, against the judgment and decree of the learned small cause court judge nahan dated 21-2-1952, dismissing his suit for. recovery of rs. 32/11/-. this amount consisted of rs. 24/1/-, alleged to be due as price of ghee which the defendant is said to have purchased from the plaintiff on 29 mangsar 2005, and rs. 8/10/- as interest thereon at 12 per cent, per annum. no written statement was filed but the defendant's counsel stated that the plaintiff's claim was not admitted. the trial court thereupon put the plaintiff to the proof of his case. the plaintiff came into the witness-box and he produced extracts from his books of account, but the suit was dismissed 'in the absence of any proof.'2. there is a preliminary objection raised by.....
Judgment:

Chowdhry, J.C.

1. This is a plaintiff's application in revision under Section 25, Provincial Small Cause Courts Act, 1887, against the judgment and decree of the learned Small Cause Court Judge Nahan dated 21-2-1952, dismissing his suit for. recovery of Rs. 32/11/-. This amount consisted of Rs. 24/1/-, alleged to be due as price of ghee which the defendant is said to have purchased from the plaintiff on 29 Mangsar 2005, and Rs. 8/10/- as interest thereon at 12 per cent, per annum. No written statement was filed but the defendant's counsel stated that the plaintiff's claim was not admitted. The trial Court thereupon put the plaintiff to the proof of his case. The plaintiff came into the witness-box and he produced extracts from his books of account, but the suit was dismissed 'in the absence of any proof.'

2. There is a preliminary objection raised by the learned counsel for the defendant-respondent, namely, that Section 25, Provincial Small Cause Courts Act, is not applicable and therefore the present revision could only lie under para. 35 of the Himachal Pradesh (Courts) Order, 1948. He further argued that if the present revision be under sub-para. (1) (b) of para. 35, the revision is not maintainable because the condition contained in the second proviso as to the value of suit being 1000/- rupees or upwards was not satisfied, and that if sub-para. (1) (a) applied the revision was not competent because no question of jurisdiction was involved.

3. In support of the contention that Section 25, Provincial Small Cause Courts Act, was not applicable, the learned counsel for the defendant-respondent referred to the provisions of Section 3 (c) of that Act, which lays down that nothing in the Act shall be considered to affect any local law or any special law other than the Code of Civil Procedure. He further argued that the Himachal Pradesh (Courts) Order, 1948, was one such special law, and that therefore the relevant provision for a revision even in the case of a revision from the judgment and decree of a Small Cause Court would be para. 35 of the said Order and not Section 25 of the said Act. Before proceeding further, it may be stated here that the provisions of the Provincial Small Cause Courts Act, 1887, have been applied in Himachal Pradesh under the Himachal Pradesh (Application of Laws) Order, 1948, which came into force on 25-12-1948, and again under theMerged States (Laws) Act, 1949, which cameinto force on 28-12-1949.

4. Now, there is really no conflict between the provisions of Section 25 of the Act and para. .35 of the Order in question. Except for the special provision contained in sub-para. 1 (b) of para. 35 of the Order (authorising the Judicial Commissioner to make such order as he thinks fit where further consideration on an important question of law or custom was involved), the provisions of sub-para, (1) (a) of that paragraph correspond to those of Section 115, Civil P. C. It is well established that Section 25 of the Act is a provision much wider in its scope than Section 115 of the Code, for whereas the latter justifies interference only in cases of failure of exercise of jurisdiction which vested or exercise of jurisdiction which did not vest or of material irregularity in exercise of the same, the former goes beyond that and permits the High Court to interfere with the decision of a Court of Small Causes where the decision was not in accordance with law. That being so, it cannot be said, within the intendment of Section 3 (c) of the Act, that Section 25 of the Act affected the special law-contained in para. 35 of the said Order. If any of the grounds mentioned in para. 35 of the Order be present that alone might be sufficient to justify an interference by this Court in exercise of its revisional jurisdiction under that paragraph. If, however, none of those grounds exists but the High Court is satisfied that the decree or order in question passed by a Court of Small Causes was not according to law, there would still be room for interference under Section 25 of the Act. Manifestly therefore since Section 25 of the Act affords ground for interference within an ambit wider than that provided by Para. 35 of the said Order it cannot be said that the former affected the special law embodied in the latter. I therefore hold that the present revision is competent under Section 25, Provincial Small Cause Courts Act, 1887.

5. In view of what has been stated above, it is not necessary to consider the objections raised by the learned counsel for the defendant-respondent which are based upon the provisions of para. 35 of the Himachal Pradesh (Courts) Order. For the same reason, the ruling of this Court reported as--'Lalla Ram v. Naresh Chand', AIR 1952 Him P & B 28 (A), which laid down certain principles relating to exercise of jurisdiction under Section 115 (c) of the Code, has no application here.

6. So far as the present case is concerned, this Court has to be satisfied whether or not the decree in question which is the subject-matter of the present revision was passed according to law within the purview of Section 25, Provincial Small Cause Courts Act. The first contention put forward by the learned counsel for the plaintiff-petitioner was that the Judge below not having held that the books of account filed by the petitioner were not regularly kept, it acted illegally in discarding them from evidence. The contingency of going into the question of whether the books of account were, or were not, regularly kept did not arise in this case for the extracts of daybook and ledger filed by the plaintiff were never proved. The trial Court says that the employee in whose handwriting the entries in question admittedly were had not been produced. It is really not necessary to go into the question whether in order to prove the extracts in question it was incumbent upon the plaintiff to produce the employee, as seems to have been held in--'Lachmi Narain v. Musaddi Lal', AIR 1942 Oudh 155 (B), for, even the plaintiff himself did not say a word in his deposition by which the extracts in question could be held to have been proved. In fact, the plaintiff made no reference whatsoever to the entries relating to the transaction in suit. Mere production of the extracts was not tantamount to a proof of those ex-tracts. That being so, the trial Court was correct in its finding that the entries in ques-tion had not been proved.

7. It was next contended by the learned counsel for the plaintiff-petitioner that even though the extracts may not have been proved, the suit should have been decreed on the unrebutted oral testimony of the plaintiff. That was however a question of whether in the particular circumstances of the case the Judge below was, or was not, justified in discarding the statement of the plaintiff. He has specifically referred in his judgment to the fact that the plaintiff had gone into the witness-box, and yet he eventually dismissed his suit on the ground of absence of any proof. It appears therefore that it was not merely because the plaintiff had failed to prove the extracts from his books of account, but also because the Judge did not believe the plaintiff's statement in the witness-box, that his suit was thrown out. It may be that the learned Judge discredited the plaintiff's testimony because he had not the courage to prove the extracts in his books of account. It cannot therefore be said that the Court below acted arbitrarily in discarding the testimony of the plaintiff. If in such circumstances the Court below has chosen not to believe the statement of the plaintiff it cannot be said that its decision was not in accordance with law.

8. The learned counsel for the plaintiff-petitioner cited the following rulings.--'Firm Jodha Mal Budhu Mal v. Ditta', AIR 1925 Lah 242(1) (C). That was a case where the High Court in exercise of its revisional jurisdiction remanded the case for decision according to law because the Court in question had totally omitted to take into consideration the books of account filed by the plaintiff. There is nothing to show that in that case, as in the present, the entries in question had not been proved. Presumably, the entries had been proved, and if that be so, there is no doubt that the Court below was wrong in not taking them into consideration. As stated already, however, in the present case, the entries were never proved. This ruling has therefore no application. The next case cited was--'Suraj Prasad v. Mt. Makhna Devi', AIR 1946 All 127 (D). It was laid down there that entries in the account books are not by themselves evidence to attach a liability to the debtor but they can be used to corroborate the evidence given by the creditor, and that a decree can be passed on the basis of such corroborated evidence. There can be no quarrel with that proposition, but the entries must be proved, which, as already shown, has not been done in the present case. The next case cited was--'Gouri Sankar v. Sashi Bhusan', AIR 1933 Cal 501 (E), which again was a case where entries in books of account had not been taken into consideration. Thesame remarks apply to this ruling therefore as to 'AIR 1925 Lah 242(1)' (C) above. The next case relied upon was--'Ram Nath v. Salig Ram', AIR 1933 All 339 (F). It lays down that there would be good ground for interference under Section 25 of the Act where the decision in question had not been arrived at judicially but arbitrarily. And it was further laid down that a decision will be deemed to have been arrived at arbitrarily where the Judge has not determined all the issues and there is nothing on the record to intimate that the Judge had considered all issues raised by pleadings. There is no doubt that no written statement was filed in this case and no issues were framed, but the defendant's counsel did make the statement that the plaintiff's claim, was denied. The Judge below has stated specifically in his judgment that the plaintiff was put to proof, which was the same thing as framing an issue as to whether the plaintiff's allegation of having supplied the ghee in question to the defendant was correct. No other question arose for determination in this case. It cannot therefore be said that the relevant issue was not framed or that the Judge did not consider the issue raised by the pleadings. Finally, the learned counsel for the plaintiff-petitioner cited--'Mathura Prasad v. B. B. and C. I. Rly. Co.', AIR ,1924 All 691 (G), which lays down that gross errors of law are not revisable under Section 115, Civil P.C., though they are revisable under Section 25, Small Cause Courts Act. The question, however, is whether there has been any such grave error of law. For reasons recorded, I hold that no such error of law has been shown to have been committed by the Court below. There is therefore no ground for interference in revision, and the plaintiff's application is dismissed with costs and the judgment and decree of the learned Judge below are affirmed.


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