Mukhi Ram vs Firm Kamta Prasad-Balam Das

Wort, J.—The cross-objection in this case is not pressed. The appeal is by the defendant in an action brought by the plaintiff on a bahikhata account. It appears that business was done between the parties, the defendants (being a joint Hindu firm) purchasing cloth from the plaintiff paying from time to time sums on account of dues. As a result of the account, the plaintiff claimed a balance of upwards of Rs. 1,600 which included the price of cloth together with interest at 12 per cent. per annum according to the agreement made at the time between the parties.

Mr. Khurshed Husnain who appears on behalf of the defendant-appellant contends that the evidence upon which the learned Judge in the Court below relied was not properly before the Court in two respects. So far as Ex. 3, which was the ledger account produced by the plaintiff, is concerned, the argument is that it was not endorsed in accordance with Order 13, Rule 4, Civil P.C. What appears to have happened was that the learned Judge in the trial Court below marked the book of account with the number of the suit, the date and his signature. It is a non-compliance with Order 13, Rule 4, as it is contended that neither the name of the person producing the book or document nor a statement that it had been admitted in evidence had been included in the endorsement made by the trial Judge, and it is therefore said that in that respect the evidence upon which the learned Judge in the lower appellate Court relied in reversing the decision of the trial Court was not properly before the Court. The decision in Sadik Husain Khan v. Hashim Ali Khan AIR 1916 PC 27 is cited and reliance is placed on the observation of their Lordships of Judicial Committee of the Privy Council at p. 236 of the Reports. There appears to have been a controversy before their Lordships'' Board as to whether certain documents had been admitted in evidence; and, as there had been a noncompliance with Order 13, Rule 4, Civil P. C, a difficulty arose as to whether the document had been admitted or not and their Lordships made this observation:

Finally, their Lordships feel bound to criticize adversely a practice followed in these two cases, which is as illegal as it is slovenly and embarrassing.

Reference is then made to the provisions of the CPC and then the following observation is made:

Their Lordships, with a view of insisting on the observance of the wholesome provisions of these statutes, will, in order to prevent injustice, be obliged in future on the hearing of Indian appeals to refuse to read or permit to be used any document not endorsed in the manner required.

Reference is made by Mr. Husnain to two decisions of the Lahore High Court with regard to the case before their Lordships of the Privy Council. But in those cases, as in the case before the Privy Council, as my learned brother pointed out in the course of the argument, there was a controversy as to whether the document had been in fact admitted in evidence in the Court of first instance. That is not the question in this case. There is no doubt that the document or the book of account now objected to by Mr. Husnain was before the trial Court and the appellate Court and was discussed in evidence. I cannot come to the conclusion that their Lordships of the Privy Council ever intended to say that non-compliance with Order 13, Rule 4, however reprehensible, makes the document inadmissible in evidence.

The second point argued is that there was no proof of the debts alleged to be owing by the defendant, and this argument is addressed to us more particularly with regard to an item of Rs. 1,350 which in the book of account produced before the learned Judge was an item described as being ''brought forward.'' First the original book from which this item was brought forward was not produced before the Court and it is said also that there was no definite evidence, apart from the book itself, to show that there had been any transaction between ''the defendant and the plaintiff. In other words and put shortly, there was no relevant evidence to prove the transaction between the defendant and the plaintiff.

Now the learned Judge in the Court below comments upon this matter but from another point of view. The argument on behalf of the defendant before him was that the witness who purported to prove these debts did not state that the matters with respect to which he was giving evidence were matters upon which he could speak of his own personal knowledge. That is true, and coming more particularly to the point that Mr. Husnain argues, the evidence of the witness who purported to prove this transaction was of the baldest possible kind. We have looked into the evidence for the purpose of deciding the question of whether there was any legal proof of this transaction, and we find that the witness went into the witness-box and stated broadly that there were transactions between the plaintiff firm and the defendant firm and that certain sums were owing. Now there is nothing in law to prevent a Judge relying upon evidence of that kind; there is nothing in law to prevent the learned Judges in the Courts below from coming to the conclusion that the transactions were proved even though the witnesses had not stated that the evidence they gave was from their own personal knowledge. It was a matter entirely for the defendant. If he did not wish to cross-examine the witnesses on these matters and attempt to shake their evidence in cross-examination, he and he alone must suffer. The fact that there was no cross-examination does not assist the defendant, and indeed goes against him; and, as I have already said, in the absence of cross-examination and in the absence of witnesses being shaken in cross-examination, the learned Judges in the Courts below are entitled, if they were so minded, to rely upon the bald statement that was given for the plaintiff in, his behalf. That in substance disposes of the point in appeal.

There remains only one short point. It is contended by Mr. Husnain in a somewhat vague manner that the transactions were barred by limitation--particularly the item of Rs. 1,350, to which I have already referred. The learned Judge of the trial Court sets out in the course of his judgment the statement of account, and it will be seen that on the debit side there is an item, so far as sale of goods is concerned, of a total of Rs. 2,081-2-3. It must be taken that Rs. 1,350 would be added to the head of this column as the item brought forward from the accounts entered in the books of previous years. On the right hand side are the items of payment amounting to Rs. 2,195-8-0. Now it is not clear whether on the debit side, and, therefore, whether, in the item of Rs. 1,350, there is any item of interest; and I would state in this connexion that so far as the amounts themselves are concerned there can be no controversy in this Court. Now the net result of the, statement that I have made is this: that the defendant (the debtor) not having appropriated the payments of Rs. 2,195 odd, the plaintiff (the creditor) was entitled to appropriate those amounts to such items as he thought fit, and in this case he has appropriated them to all the earlier items which would, apart from the appropriation, have been barred by limitation. Rs. 2,195 odd thus being appropriated shows that all the items prior to 8th January 1927 have been paid off and in consequence such items as remain are within the period of limitation.

In my judgment, although the conduct of this case in the trial Court was anything but satisfactory, and although perhaps the trial Court has not complied strictly with the provisions of Order 13, Rule 4, Civil P. C, in regard to endorsement on the exhibit, there seems to be no reason in law why the judgment of the lower appellate Court should not be affirmed. For those reasons I would hold that the appeal fails and must be dismissed with, costs.

Rowland, J.

I agree.