Ramgobind Prasad and Another vs Gulab Chand Sahu and Others

Chatterji, J.—This appeal arises out of a suit for recovery of Bupees 1066-12-3 on basis of bahi khatas.

The plaintiffs'' case is that the defendants are members of a joint family, defendant 2 being the karta. They have two confectionery shops in Samastipur, and for the purpose of those shops they used to purchase from the plaintiffs'' firm flour, sugar, etc., on credit and made payments from time to time. The transactions were going on for some years, but the plaintiffs'' dues up to 14th Asarh 1340 were paid up. The transactions continued after that date till 13th Jeth 1342. The claim in the suit relates to the transactions between the period from 14th Asarh 1340 to 13th Jeth 1342. The amount claimed includes interest at one per cent, per mensem which the defendants are said to have agreed to pay. The defence was a total denial of the transactions. It was also pleaded that defendant 2 and his son defendant 9 were separate from defendant 1 and his sons defendants 3 to 8.

The learned Munsif decreed the suit against all the defendants holding that they were all joint, and that the transactions alleged by the plaintiffs were true. He found that the account books of the plaintiffs were genuine and were kept in regular course of business.

On appeal by defendants 2 and 9, the learned Subordinate Judge affirmed the Munsif''s finding regarding the defendants'' jointness, and though he did not doubt the genuineness of the plaintiffs'' account books, he considered that there being no independent evidence in proof of the transactions, the entries in the account books alone were not sufficient to charge the defendants with liability. In this view he dismissed the whole suit. Hence this second appeal by the plaintiffs.

Mr. Sushil Madhab Mullick on behalf of the appellants contends that the decision of the learned Subordinate Judge proceeds on an altogether erroneous view of Section 34, Evidence Act. That section runs as follows:

Entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to enquire but such statements shall not alone be sufficient evidence to charge any person with liability.

The learned Subordinate Judge says:

There is no independent evidence to prove that such and such articles valued at such and such amounts were supplied on such and such dates. The evidence produced by the plaintiffs is rather general evidence showing transactions between the defendants and the plaintiffs'' firm.

Such evidence, he thinks, is not sufficient to charge the defendants with liability. He relies on the case in Bibi Imambandi v. Haji Motasuddi (12) 15 C.L.J. 621 in which it has been laid down that:

It is essential in every case when reliance is placed upon books of account to establish that they have been regularly kept in the course of business; but it is not sufficient merely to prove the correctness of the books, the entries themselves have to be proved, unless the necessity for such proof is removed by the admission of the opposite party.

He also refers to the decision of this Court in Rampat Sahu Vs. Bhajju Sahu and Another, in which

the plaintiffs who sued on bahi khatas called a witness to prove that certain entries in the bahi khatas were in the handwriting of particular persons but he offered no evidence of the transactions themselves and did not prove the debts which were purported to have been recorded in the bahi khatas.

The learned Judges held that there was no evidence sufficient to charge the defendants with liability and consequently dismissed the suit. The learned Subordinate Judge further relies on the decision of the Lahore High Court in Ganeshi Lal v. Firm Mangat Ram Atma Ram AIR 1924 Lah. 540 where it was held that a plaintiff to succeed must prove the various items of his account by independent evidence.

In the present suit the plaintiffs have examined several witnesses including plaintiff 1 and their Munshi Niras Jha, ''P.W. 8. All these witnesses depose that the defendants had transactions with the plaintiffs. This evidence, however, is of a general character. Plaintiff 1 (P.W. 1) says:

Defendants used to make purchases from my firm for carrying on shops of puri, mithai.... Rs. 1066-12-3. as principal plus interest is due from the defendants...defendants continued business with my firm till 13th Jeth 1342 F.S. The books of accounts of my firm were written in due course of business.

He also proves the entries in the account books. But he does not say that the entries were made in his presence or that he was present when the transactions referred to in the entries took place. According to his evidence the entries in the account books for 1340 were written by his Munshi Anant Lai who is no longer in his service, nor has he been examined in this case. But the evidence of P.W. 8, Niras Jha, who is the present Munshi of the plaintiffs, is important.

He says that he writes the plaintiffs'' bahis since 1341. He further says in his examination in chief:

In 1341 and 1342 F.S. Gulab Chand (defendant 2) made purchases from plaintiffs'' firm and made payments also from time to time. The transactions and the payments were noted in the bahi khata accounts in due course of business.

He then goes on to prove the entries in the account books written by him. These are Exs. 2z (7) to 2z (12) in the khatas and EXS. 3z (179) to 3z (283) in the rokars. In cross-examination he says:

A man is deputed along with the customer and after the purchase, they come back and get the purchases noted in the bahis at the gaddi.... I remember only a few transactions made by Gulabchand. I do not orally remember the particulars of all the transactions entered into by him.

This witness thus proves not merely the entries written by him, but also that the transactions referred to in those entries actually took place. His evidence, therefore, sufficiently corroborates those entries in the account books that were written by him. Section 34, Evidence Act, does not mean that there should be, as the learned Judge thinks

independent evidence to prove that such and such articles valued at such and such amount were supplied on such and such dates.

What would amount to independent evidence sufficient to corroborate the entries in the account books depends upon the facts of each case and particularly on the issues between the parties. What is necessary to be seen in each case is whether besides the entries in the account books, there is any evidence to prove that the transactions referred to in those entries actually took place. Where the transactions sued upon are numerous and extend over some length of time, it is hardly reasonable to expect independent evidence to be given to prove each and every particular transaction.

In such case the genuineness of the account books, if they are regularly kept in the course of business, will be the determining factor. But mere proof of the correctness of the entries in the account books will not be enough. There must be some evidence to corroborate those entries. Such corroboration will be best afforded by the evidence of the person who wrote the account books and in whoso presence the transactions took place. He cannot possibly have independent recollection of the various transactions and he may, as provided in Section 159, Evidence Act, refresh his memory by referring to the account books. But it is not necessary for him to prove that "such and such articles valued at such and such amount were supplied on such and such dates." If he proves the entries written by him and states that the transactions referred to in those entries actually took place in his presence or to his knowledge, the effect will substantially be the same. Where however the dispute between the parties is confined to some particular items only, specific evidence may be available and should be insisted upon to prove those particular transactions.

In this connexion reference may be made to the decision of the Privy Council in Baboo Gunga Prasad v. Baboo Inderjit Singh (75) 23 W.R. 390. There it was held that

where the fact of payments by a banking firm is distinctly put in issue the books of the firm being at most corroborative evidence, the mere general statement of the banker to the effect that his books were correctly kept is not sufficient to discharge the burden of proof that lies upon him, particularly if he has the means of producing much better evidence.

In Bibi Imambandi v. Haji Motasuddi (12) 15 C.L.J. 621 , there was evidence merely to prove the correctness of the books; the entries themselves were not proved. Certainly such evidence could not be sufficient, and this is what was held in that case. In Rampat Sahu Vs. Bhajju Sahu and Another, , a witness was called simply to prove that certain entries in the bahi khatas were in the handwriting of a particular person. The writer of those entries was not called, nor any evidence was given of the transactions themselves. This is not the state of evidence in the present case.

The Lahore case in Ganeshi Lal v. Firm Mangat Ram Atma Ram AIR 1924 Lah. 540 no doubt supports the defendants'' contention. But it is a decision of a Single Judge, and with all respect I must say that the decision went too far. Besides, without knowing the actual facts and the exact evidence in that case, the decision cannot be regarded as laying down any general principle of law. The learned Subordinate Judge himself observes:

If plaintiff 1, or one of his servants, had offered evidence of the various transactions on reference to the entries in the rokar bahis, such evidence coupled with the general evidence of the other witnesses might have been sufficient to charge the defendants with liability.

This shows that he did not doubt the genuineness of the plaintiffs'' account books. If, therefore, he had considered that the evidence of P.W. 8 was reliable and sufficient in law to corroborate the entries in the account books so far as those written by him were concerned, he would have given the plaintiffs a decree on the basis of those entries. P.W. 8 proves the entries Exs. 2z (7) to 2z (12) in the khatas and the entries Exs. 3z (179) to 3z (283) in the rokars to be in his handwriting. If his evidence about the actual transactions is believed, the plaintiffs will be entitled to a decree for the amount covered by the said entries. But as it is not clear from the judgment of the learned Subordinate Judge whether he believes the evidence of P.W. 8 or not as the amount has not been determined, it is necessary that the case should go back to him. He has not also decided the question of interest.

I would, therefore, allow the appeal and set aside the decision of the lower appellate Court and remand the case to that Court for disposal according to law in the light of the observations made above. Costs will abide the result.

Manohar Lall J.

I agree.