Ghulam Ahmad and Another vs The Government of Jammu and Kashmir

K.V. Gopalakrishnan Nair, J.—This is an appeal against the judgment and decree of Shahmiri J. The suit was for a sum of Rs. 22,644/10/9

against two Defendants on foot of agreements executed by them to the Plaintiff State. The second Defendant bound himself under the agreements

as a surety. The first Defendant, principal debtor, was an Assistant Surgeon in the service of the Plaintiff State. He was deputed to England by the

State for further training in medicine and for passing the London MRCP examination. This he was to do according to the agreement dated 3rd

Sept. 1936 within a period of three years. The Government agreed to pay the first Defendant stipend, family allowance, travelling allowance, etc.

In case he failed to pass the London MRCP examination or having passed the examination did not return to the State to serve the State for a

period of seven years, he as well as the surety (second Defendant) were to reimburse to the State all the expenses defrayed by the State in

connection with the first Defendant's deputation to England for the purposes already mentioned.

The annual stipend fixed in the agreement of 3rd Sept. 1936 was £ 200. On 8th Sept. 1938 a supplementary bond was executed by the

Defendants to the State under which they undertook similar obligations as in the earlier agreement, and the amount of the yearly stipend was raised

from £ 200 to £ 216. As the first Defendant did not pass the London MRCP examination as stipulated in the first agreement of 3rd Sept.

1936, he requested the Government for extension of time. Time was extended till the end of September 1940, and to cover the expenses during

the extended period a supplementary bond was executed by the Defendants to the State on 24th June 1940. The first Defendant did not pass the

London MRCP examination in spite of the somewhat liberal extension of time allowed to him by the Plaintiff State. What is more, he declined to

return to the State in spite of repeated requests made by the State. He was also informed by the State that the agreements executed by him will be

enforced against him. Even this did not have any effect. Eventually, he was dismissed from service and was called upon to pay the amount spent by

the State on him. As this demand was not heeded, the Plaintiff brought the suit against him and his surety, the second Defendant.

Shahmiri J. who tried the suit passed a decree against both the Defendants for a sum of Rs. 20,688/7/2. This, he found, was the amount

received by the first Defendant from the State during the period of deputation for training in medicine. The second Defendant who had stood surety

for the first Defendant, appealed. The appeal was heard by the Chief Justice and Kilam J. They negatived all the contentions raised by the second

Defendant in an attempt to get it declared that he is absolved from his obligations as surety. In this, the Division Bench concurred with Shahmiri J.

But it was pressed before the Division Bench in appeal that some further evidence was necessary for conclusively establishing that the first

Defendant actually received the entire amount for which a decree was passed by the trial judge. A sum of Rs. 5358/12/ - was found by the

Division Bench to have been actually paid to the family of the first Defendant under the suit agreements. Therefore, the further evidence which the

appellate court considered necessary was only in respect of the rest of the amount for which a decree had been passed by the trial Court. There

was ample evidence in the case to show that the entire amount for which the decree was passed had been remitted by the State to the office of the

High Commission of India in London for payments to and on behalf of the first Defendant.

The appellate court thought that some evidence is necessary to show that the amounts were really paid by the High Commissioner's office to the

first Defendant. They, therefore, remitted issue No. 2 in the suit to the trial judge with the request that ""he would inquire into the amounts alleged to

have been received by Defendant No. 1 from the High Commissioner's office."" The trial judge was also directed to record a fresh finding on the

issue after giving both sides opportunity to adduce evidence. In pursuance of the directions of the appellate court, Ali J. returned a finding to the

effect that only the admitted sum of Rs. 5358/12/- can be held to have been received by the first Defendant and that the rest of the claim was not

proved by the Plaintiff. The learned Advocate General appearing for the Stats has vigorously attacked this finding as incorrect and contrary to the

weight of evidence and probabilities of the case. The attempt of the learned Counsel for the Appellant, second Defendant, has been to support this

finding.

It is, therefore, necessary to examine whether the finding of Ali J. has to be upheld or not. The fresh documentary evidence placed before Ali J.

consisted of Exs. A-1 and A-2. Ex. A-1 constitutes the photostat copy of the Ledger account regularly kept in the course of business by the

Accounts Department of the High Commission of India in London. Ex. A-2 is the payment order form used in the High Commissioner's office.

Two witnesses, namely, P.S. Rau, Chief Accounting Officer of the High Commission of India in U.K. and M.S. Sundaram, Counseller, Education

Department in the High Commission, have also given evidence. The evidence of these two witnesses shows that the amounts covered by Exs.

PW2/71 to PW2/82 and PW2/1 and PW2/2 were received at the High Commissioner's office from the Plaintiff through the Imperial Bank of

India.

They also stated that file No. ES 255/1 of the Education Department of the High Commission contains the correspondence relating to the first

Defendant addressed by the Government of Jammu and Kashmir to the High Commission of India authorizing payment of stipends etc. from time

to time to the first Defendant. The evidence further discloses that a Ledger Account in the name of the first Defendant referring to file No. ES

255/1 was also opened by the Accounts Department of the High Commission. This ledger account (photostat copy of which is Ex. A-1) contains

entries of payments made by the High Commission of India in London to the first Defendant as well as payments made on behalf of the first

Defendant by the High Commission to authorities like the London Hospital Medical College and the Royal College of Physicians, Edinburgh on

account of fees etc. due by the first Defendant. All these entries relate to the period covered by the suit agreements Exs. P-1 to P-3,

The two witnesses aforesaid also spoke to the established procedure adopted by the High Commission of India in London in making payments to

scholars deputed by different States. Payments are first sanctioned by the appropriate authorities of the Education Department of the High

Commission. Such sanctions are made in the relevant files relating to different scholars. On the Basis of the sanction of the Education Department,

the Accounts Department of the High Commission issues a payment order form (Ex., A-2). This form is forwarded to the payee or his bank and

payment is made only against the duly signed receipt of the payee or the bank, as the case may be. Thereafter, payments so made are entered in

the Ledger Account of the Accounts Department. Then the file of the Education Department is returned to that department with the endorsement

of payment. This procedure ensures that entries of payments to or on behalf of a scholar will be made only after the actual receipt of the payee is

obtained.

There is also a double check in that the Accounts Department and the Education Department are both responsible for the transactions of payments

to the scholars. Further, the evidence also shows that the accounts of the High Commission are audited by the Audit Department. P.K. Rau, the

Chief Accounting Officer of the High Commission stated that the Education Department file No. ES 255/1 was audited by the Audit Department.

From this he drew the inference that the transactions referred to in that file namely, the payments made to and on behalf of the first Defendant,

were also audited. It was not urged before us or before Ali J. for that matter that the Ledger Account of the High Commission was not regularly

kept in the course of business. In fact, Ali J, has definitely stated that the accounts were regularly maintained in the course of business. It is also

conceded that the payments evidenced by Ex. A-1 taken along with the admitted sum of Rs. 5358/12/- aggregate to the amount for which a

decree was passed by Shahmiri J.

But the argument before Ali J. was that none of the payments recorded in Ex, A1 was made in the presence of either P.K. Rau or M.S. Sundaram.

These two witnesses admitted that they entered the High Commission for India only subsequent to the period of the payments entered in Ex: A1.

But both of them said that in view of the established procedure which has been adopted in the High Commission, the entries made in the Ledger

Account, original of Ex. A-1, must be taken to be true and correct. But the learned Counsel for the second Defendant urged before Ali J. that u/s

34 of the Evidence Act read with the illustration to it the entries in the books of account, however regularly kept in the course of business they be,

cannot alone be sufficient evidence to charge any person with liability. In spite of the oral evidence of P.K. Rau and M.S. Sundaram, the position

according to the second Defendant's learned Counsel was that there was nothing but the entries in the account book (Ex. A-1) to charge the first

Defendant with liability. This argument found favour with Ali J. who stated as follows:

It is well settled that mere entries in a document are no substantive pieces of evidence but if there is any other evidence to corroborate them then

certainly the liability of the person concerned can be proved. This principle is obviously based on the doctrine that an admission by a person in his

own favour should not be taken into consideration.' The learned Judge also observed that the oral testimony of P.K. Rau and M.S. Sundaram goes

no more than to prove that the entries in Ex. A-1 were made in due course of business. He observed that ""the Plaintiff ought to have in this case let

some other independent evidence, however insignificant it might have been, to show that the amounts were actually paid to Defendant No. 1.

According to him such evidence was lacking and he, therefore, returned the finding against the Plaintiff.

We are of the view that the finding arrived at by Ali J. cannot be upheld. He has apparently been influenced by Section 34 of the Evidence Act

and the illustration thereto. The illustration makes it abundantly clear that it refers only to the entries in the account books of a Plaintiff. The

argument of self-serving admission will also be available only if a Plaintiff seeks to charge a person with liability on the basis of entries in his own

books of account.

In the present case, the books of account on which the Plaintiff has relied are ""not those maintained by the Plaintiff itself. They are the account

books of an entirely different institution namely, the High Commission of India in London. Therefore, neither the illustration to Section 34 nor the

argument that self-serving admissions without more cannot be the sufficient basis to charge a Defendant with liability can strictly speaking be

applicable to the present case. Even if we assume that they do apply to the instant case, we are of the opinion that there is other evidence in the

case which taken along with the entries in the books of account warrants a decree being passed.

The circumstances surrounding the existence of the books of account and the circumstance surrounding the transaction which is recorded in the

book of account may well constitute sufficient corroborative material (please see Kallu Mal Dhakkan Lal Vs. Bhawani Das Rekhab Das, Also, if

any relevant fact which is in evidence may be treated as sufficient corroboration of the entries in the account book. In this connection the oral

testimony of P.K. Rau and M.S. Sundaram regarding the procedure obtaining in the office of the High Commissioner for India in London relating

to the making of entries in the Ledger Account is important.

It goes to show that the entries in Ex. A1 are made only when a receipt for payment duly signed by the payee is furnished. It is, therefore,

reasonable to infer that the entries in Ex. A1 are good evidence of actual payments. This apart, we have intrinsic evidence in Ex. P-2 dated 8th,

September 1938 and Ex. P-3 dated 24th June 1940. As we already pointed out, Ex. P-2 was brought into being to enable the first Defendant to

obtain an increased annual stipend of £ 216, instead of £ 200. The stipend formed by far the substantial part of the payments to be made by

the State to the first Defendant. Ex. P-2 came into existence about two years after Ex. P-1 which stipulated for only an annual stipend of £ 200.

If this annual stipend or the other payments like fees, premia, etc. had not been made to the first Defendant during the two years intervening Exs.

P-1 and P-2, one would expect some mention of it in Ex. P-2. On the other hand, Ex. P-2 proceeds on the basis that all payments contemplated

by the previous agreement Ex. P-1 had been duly made and received by the first Defendant and that he had to be paid at an increased rate during

the remaining period of the agreement. So also Ex. P-3 of 24th June 1940 which extended the period of the agreement from September 1939 to

30th Sept. 1940 proceeded on the basis that the payments contemplated by the two prior agreements, Exs. P-1 and P-2, had been properly made

to the first Defendant. Both Exs. P-2 and P-3 came to be executed because additional payments and payments for a further period had to be

made to the first Defendant. Ex. P-2 in terms refers to Ex. P-1 of 3rd Sept. 1936 and Ex.P-3 expressly refers to both the previous agreements

Exs. P-1 and P-2. There is not even a word in either Ex. P-2 or P-3 to show that any of the conditions relating to payments of stipend, premia,

fees or family allowance was not fulfilled by the State Government. On the other hand, Exs. P-2 and P-3 indicate beyond reasonable doubt that all

the payments stipulated under the previous agreements had been duly made.

Thus, Exs. P-2 and P-3 can well be taken as valuable independent evidence corroborating the entries in Ex. A-1. The oral evidence of Pandit

Pushkar Nath, Auditor in the State Accountant General's office and of Ghulam Rasul, Superintendent Education Secretariat, who had been Head

Clerk in the Scholarship Selection Board of the State and the documentary evidence furnished by Exs. PW2/71 to PW2/82 and PW2/1 and

PW2/2 can also be taken as other evidence supporting the plea that the payments were made to or on behalf of the first Defendant as entered in

the original of Ex A-1.

Further, there is the pleading and the conduct of the first Defendant. The first Defendant has not, in spite of specific demands made on him,

denied the receipt of any portion of the amount claimed from him by the State. In his written statement also he has not alleged that he received only

a smaller amount than was claimed in the plaint or that no payment at all for the entire period or for any specified period was made to him by the

High Commission of India in London. Nor did the first Defendant or the second Defendant adduce any evidence to show that the amounts covered

by Exs. PW2/71 to PW2/82 and PW2/1 and PW2/2 or any portion of the amounts was not paid to the first Defendant.

It is also important to remember that the first Defendant never made any complaint either to the High Commission or to the State Government

that during the period covered by Exs. P-1 to P-3 he did not receive the stipulated stipend or that the fees, premia, etc. payable by him to

connexion with his medical training in the U.K. were not paid by the High Commission. If, in fact, there was any default in any such payment one

would reasonably expect the first Defendant to have brought it immediately to the notice of the High Commission or the State Government. There

were really occasions for the first Defendants to have brought any default in payment to the notice of the State Government. By his letter dated.

941-41 addressed to the President Scholarship Board Jammu and Kashmir Government through the High Commissioner for India in London

(enclosure to Ex. PW1/1) the first Defendant requested for a loan and a year's leave without pay to enable him to make further attempts to pass

the MRCP examination.

If he was not paid the stipend, fees, etc. for any period prior to this letter, there is every reason to expect him to have made a grievance of it in this

letter. Indeed, he did not make any complaint even when he was definitely told that the Government proposed to realise from him the entire suit

amount on account of his having incurred liability therefore under the agreements executed by him.

No hard and fast rule can be or has been laid down as to the nature or quantum of evidence necessary to support the entries in the books or

account u/s 34 of the Evidence Act. The nature and the quantum of other evidence required in each case will depend upon the circumstances of

that case. In the present case, we are satisfied that there is sufficient evidence to support and corroborate the entries in Ex. A-1. It is, therefore,

incorrect to think that this is a case where the Plaintiff seeks to charge the Defendants with liability exclusively on the basis of the entries in the

books of account. No doubt, the personal files relating to the first Defendant in the High Commission as well as the receipts obtained from the

payee were destroyed on account of efflux of time.

Destruction of these papers was made, according to the evidence of P.K Rau and M.S. Sundaram, in accordance with the established practice

which obtained in the High Commission. In the circumstances of this case and in view of the long lapse of time it was impossible to produce any

other evidence except Ex. A-1 to show that payments were actually made by the High Commission to the first Defendant. The absence of other

evidence in the High Commissioner's office should, therefore, be taken into consideration in ascertaining whether the best possible evidence has

been produced in this case.

There is also another aspect. The entries in Ex. A1 can well fall within Section 35 of the Evidence Act. The entries are, therefore, relevant facts

from which proper inference of liability on the part of the Defendants can be drawn. As pointed out in AIR 1925 170 (Privy Council) :

Statements in public documents are receivable to prove the facts stated on the general grounds that they were made by the authorized agents of the

public in the course of official duty and respecting facts which were of public interest or required to be recorded for the benefit of the community.

In many cases, indeed, in nearly all cases, after a lapse of years it would be impossible to give evidence that the statements contained in such

documents were in fact true, and it is for this reason that such an exception is made to the rule of hearsay evidence.

A presumption that official acts have been regularly performed and that common course of business has been followed is also available to the

Plaintiff u/s 114 of the Evidence Act. This presumption can serve to strengthen the accept-1 ability and reliability of the entries in Ex. A-1.

In view of what we have stated above, we are satisfied that the entries in Ex. A-1 taken along with the rest of the evidence in the case and the

reasonable probabilities are sufficient to establish that the first Defendant was actually paid the amounts for which a decree was passed by Shahmiri

J.

In the result, we dismiss this appeal with costs.

J.N. Wazir, C.J.

I agree.