1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T S.B.CIVIL FIRST APPEAL NO.165/1992 Umrao Singh Vs. Shri Narendra Mann S.B.Civil First Appeal under Section 96 C.P.C. against the judgment and decree dated 18.5.1992 passed by District & Sessions Judge, Jhunjhunu in Civil Suit No.21/1988, by which the suit of the plaintiff has been decreed. **** DATE OF JUDGMENT: AUGUST 20, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr.Vimal Choudhary. for the appellant Mr.M.M.Ranjan, for the respondent BY THE COURT: 1. This S.B.Civil First Appeal has been filed under Section 96 C.P.C. against the judgment and decree in Civil Suit No.21/88 dated 18.5.1992 passed by District & Sessions Judge, Jhunjhunu by which the suit of the plaintiff has been decreed for Rs.10,680.10 along with interest from the date of filing the suit till the amount is recovered at the rate of 6% per annum. 2. Facts in brief are that plaintiff-respondent Shri Narendra Mann filed a civil suit No.21/88 before the District Judge, Jhunjhunu stating inter alia therein that on 23.4.1985 the appellant defendant purchased 1650 Kg & 900 Gms. Sarson from 2 plaintiff's shop at the rate of Rs.380/- per Quintal and also other expenses namely Sales tax, Mandi tax, Goshala tax etc. total amounting to Rs.10,680.10. It is also alleged that defendant took the above Sarson with him and promised to pay the money later-on and since the money was not paid, therefore, a registered notice was sent, the same was received by the defendant-appellant, but no reply to that notice was given and money was also not paid, therefore, it became essential to file a suit for recovery of aforesaid amount due against the defendant- appellant. 3. That the defendant-appellant filed his written statement, wherein he denied all the facts stated in the plaint and it was also alleged that the plaintiff prepared false documents and since the defendant did not sign on the bill, therefore, it is not believeable that at any point of time he purchased Sarson from the plaintiff-respondent. 4. The learned District Judge on the basis of pleadings of the parties framed as many as 8 issues including relief. On behalf of plaintiff, he examined 3 witnesses including himself as P.W.1. P.W.2 is Bajrang Lal who at the relevant time was Munim in the plaintiff firm sold the Sarson and issued the bill Ex.1. He has also proved the entries made in the Account Books of the Firm and also entries made in the stock register. He has proved in this regard Ex.s 6, 7 & 8 entries made in Account Book and also in the stock register. P.W.3 is Daya Kishan, who at the 3 relevant time also used to supervise the plaintiff's shop namely Mann Trading Company. He has also stated that Sarson was taken by the defendant-appellant and no amount was paid by him. He has proved entries made in the account books maintained regularly during the course of business. On behalf of defendant-appellant he examined himself as D.W.1, wherein he has completely denied that he ever purchased Sarson from the shop of the plaintiff. The learned trial court after hearing final submissions in the matter recorded its finding to the effect that merely a denial to purchase Sarson by the defendant-appellant was not sufficient to discharge burden in view of the oral as well as documentary evidence led by plaintiff-respondent. The defence of the appellant was also not tenable that on account of political rivalry a false suit for recovery was filed against him in absence of any material either of oral or documentary placed on record and decreed the suit. Hence this present appeal has been filed. 5. It has been the contention of the learned counsel that in the absence of signatures on the bill (Ex.1), it cannot be said that appellant at any point of time purchased Sarson from the shop of plaintiff. It has also been contended that there is no independent witness in this case as would appear that P.W.1 plaintiff himself and P.W.2 Bajrang Lal is the Munim of the shop and P.W.3 is father of the plaintiff. It is contended that just before expiry of period of limitation the suit has been filed. 4 6. On the other hand, the learned counsel for the plaintiff-respondent has contended that by oral as well as by documentary evidence it has been proved beyond doubt that defendant-appellant purchased Sarson from the shop of the plaintiff on 23.4.1985 and a bill in that regard was issued and carbon copy was available in the bill book. Therefore, simple denial made by the defendant will not exonerate him from the responsibility to make payment of the purchased Sarson by the defendant from the shop of the plaintiff-respondent. It has also been contended that a presumption is always available in relation to the account books properly maintained during the course of business regarding their correctness and genuineness. It is contended that Munim made entries in the account book, bill was issued that has been proved by him and other witnesses. Entries in the accounts book have been proved by the witnesses. According to the learned counsel in the above circumstances, in the present matter, the learned trial court has not committed any illegality or there does not appear any perversity in the findings recorded by the trial court. 7. I have carefully considered the submissions made before me. 8. The only defence put in the written statement is the denial. The defendant has stated in the written statement that he never purchased Sarson as alleged by the plaintiff. Subsequently, in his statement he stated that on account of 5 political rivalry a false suit has been filed but then there does not appear any suggestion put in this regard to the plaintiff as well as his witnesses. The Issue No.1 was in relation to purchase of Sarson by the defendant-appellant from the shop of plaintiff- respondent. The learned trial court after discussing evidence of the plaintiff as well as of the defendant found that from properly maintained account book and stock register, it was amply proved that defendant had purchased Sarson from the shop of the plaintiff. A notice was also given to the defendant-appellant Ex.3 to which no reply was given though the defendant has stated that he replied the notice. The above finding, in my opinion, of the trial court is in accordance with law because Section 34 of the Evidence and also in view of the evidence led in this case was sufficient to decide the Issue No.1 in favour of the plaintiff. Issue No.2 was in relation to maintaining the account books properly and the same were maintained regularly. In this regard, the trial court considered the evidence of plaintiff and his witnesses, the plaintiff and his witnesses proved the entires of account book and stock register etc. in the trial court. Therefore, the trial court committed no illegality in deciding this issue in favour of the plaintiff. Issue No.3 was in relation to giving of notice to the defendant-appellant. The plaintiff by his evidence and by proving the notice Ex.3 to the defendant at his address and also in view of acknowledgment receipt Ex.5, it stands proved that notice was served on defendant prior to filing of the suit. The other issues are not of much relevance. 6 9. In view of above finding recorded on the issues framed, the learned District Judge has decreed the suit. The contention of the learned counsel for the appellant that since independent witnesses were not produced or the books of accounts were not maintained regularly and were not reliable, cannot be accepted. The other contentions of the learned counsel for the appellant that on account of enmity, false suit has been filed is also liable to be rejected for the simple reason that no material has been brought on record to prove this allegation. Even a suggestion in this regard has not been put to the witnesses. 10. In view of foregoing discussion, I am of the opinion that the learned trial court has correctly decided the issues framed in the case and rightly decreed the suit. There does not appear any illegality or perversity in the findings recorded by the learned District Judge. The appeal being devoid of merit is liable to be dismissed. 11. In the result, the appeal stands dismissed. (S.P.PATHAK) J. BKS/-