RSA No. 594 of 1989 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 594 of 1989 Date of decision: September 16, 2011 M/s Jagan Nath Madan Lal ...Appellant Versus Resham Singh ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. SC Khunger, Advocate and Mr. Sandeep Kaur, Advocates, for the appellant. Mr. SC Chhabra, Advocate, for the respondent. GURDEV SINGH, J. This second appeal has been preferred by M/s Jagan Nath Madan Lal, registered firm, through its registered partner Kundan Lal, against the judgment and decree dated 8.11.1988 passed by the Additional District Judge, Ferozepur, vide which he accepted the first appeal preferred by Resham Singh, respondent/defendant, against the judgment and decree dated 17.2.1988 passed by the Additional Senior Sub Judge, Fazilka, decreeing the suit of the plaintiff for recovery of ` 5,722; ` 5,000/- as the principal amount and ` 722/- as interest, with future interest @ 12% per annum from the date of the institution of the suit till the date of decree and further interest @ 6% per annum from the date of decree till realization of the decreetal amount. RSA No. 594 of 1989 2 The case of the plaintiff, as pleaded in the plaint, is that the defendant had dealings with it, who in the due course had been selling his agricultural produce through it and had been taking money in advance by way of loan for his personal and agricultural needs. On 27.6.1984, he borrowed a sum of ` 7,200/- in cash and executed an entry to that effect in its rokar bahi. Similarly on 8.8.1984, 11.8.1984, 20.8.1984 and 30.8.1984, he borrowed `100/-, `335/-, `500/- and `65/-, respectively. He further borrowed a sum of `300/- on 10.9.1984 and all those amounts were duly entered in its account books. He had agreed to re-pay the borrowed amount alongwith interest @ 12% per annum, which was the prevalent rate of interest in the Fazilka market. Now, a sum of `6,445.60 paise i.e. `5,000/- as principal and `1,445/- as interest thereon, is due from him, which he has failed to pay, inspite of repeated reminders. The suit was contested by the defendant. In his written statement he admitted that he had dealing with the plaintiff firm and that he received a sum `100/- `335/-, `500/- and ` 65/- from it. He denied the other contentions made in the plaint and, inter-alia, pleaded that on 24.6.1984, the accounts were settled between them and at that time, it was found that `1,500/- was due form him. He sold one buffalo to the plaintiff for a sum of `3,500/- and after deducting that amount of `1,500/-, a sum of ` 2,000/- was still due to him. The above said amounts were borrowed by him only thereafter. The plaintiff firm has made fictitious entry of `7,200/- and no such amount was borrowed by him. After borrowed amount was paid by him, the balance amount is still due to him. The false and frivolous suit has been filed by the plaintiff firm by making fictitious entries in the account books. The plaintiff firm failed to pay the balance amount to RSA No. 594 of 1989 3 him despite repeated requests and he was compelled to file a complaint against it, in the court of Shri S.M. Singh Mahil, Judicial Magistrate, which was dismissed in default. He has not been supplied with six monthly statement under the Regulation of Accounts Act and proper accounts have not been maintained by the plaintiff firm. No interest was ever settled and as such the plaintiff is not entitled to recover the interest @ more than 6% per annum. He also pleaded that the plaintiff firm is not a registered firm and Jagan Nath is not the registered partner thereof. The suit has not been properly valued for the purposes of court fee and jurisdiction. He prayed for the dismissal thereof with special costs under Section 35-A of C.P.C. In the replication to the written statement, the plaintiff denied the contentions raised therein and reiterated all the averments made in the plaint. On the pleading of the parties the following issues were framed by the trial court:- 1. Whether the suit amount is due to the plaintiff from the defendant? OPP 2. Whether the plaintiff firm is not registered firm and Jagan Nath is not competent to file the suit? OPD 3. Whether the plaintiff is entitled to the interest. If so, at what rate? OPP 4. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 5. Whether the plaintiff is not maintaining regular record regarding the account of the defendants properly? OPD 6. Relief. RSA No. 594 of 1989 4 To succeed in the suit, the plaintiff examined Kundan Lal (PW- 1) and Roshan Lal (PW-2). On the other hand, the defendant himself stepped into the witness box as DW-1 and examined Baldev Singh (DW-2). He also summoned Kundan Lal, partner of the plaintiff firm, as his witness and examined him as DW-3. After going through the evidence so produced and hearing learned counsel for both the sides, the trial court decided all the issues in favour of the plaintiff and resultantly, decreed its suit. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the plaintiff that the first appellate court, while allowing the first appeal of the defendant, committed an illegality, by discarding the admissible evidence and placing reliance on the document Ex. D.1, which was executed on 24.6.1984. That document was executed before the present transactions in question and, as such, it could not have been said that the accounts being maintained by the plaintiff are wrong and false, as has been concluded by that court. No doubt, the plaintiff firm in the replication denied the fact that the plaintiff had sold the buffalo for `3,500/- and sum of `2,000/- was the balance amount, but those facts were duly admitted by the partner of the plaintiff firm, while making statement in the court. In those circumstances, it cannot be said that the plaintiff firm is to be penalized for taking a wrong stand in the replication. The court is required to do equity and the finding was to be based by the first appellate court on the basis of the evidence produced by the parties and the plaintiff could not have been non-suited merely on account of pleading of some false facts in the replication. Civil Court are meant for doing justice to the parties and not for penalizing them RSA No. 594 of 1989 5 for making some false averments in the pleadings. For any such false averments, the plaintiff could have been proceeded against by way of filing a criminal complaint. According to the learned counsel for the plaintiff, the following substantial question of law arises in the present appeal:- “Whether on the basis of the writing Ex. D.1, it can be said that the account books proved on the record b y the plaintiff are false and those could not have been taken into consideration by the court under Section 34 of the Evidence Act, 1872 (hereinafter referred to as 'the Act')?” On the other hand, while supporting the reasoning of the first appellate court, it has been submitted by the learned counsel for the defendant, that falsity in the evidence of the plaintiff is writ large. In the replication, while denying the contentions of the defendant that at the time of the settlement of the accounts, a buffalo for `3,500/- was sold by him, and out of that amount of `1,500/- was adjusted towards the outstanding amount, the plaintiff, specifically pleaded that no such accounts were settled. But all those facts were admitted by him, while appearing in the witness box. The account books produced by the plaintiff stand contradicted by writing Ex. D.1. Therefore, it cannot be said that these accounts were being maintained by the plaintiff firm in due course of its business and, as such, are not relevant under Section 34 of the Act. The plaintiff was to prove on record, the photostat copies of the account books and in the absence of those photostat copies, no reliance can be placed upon the true transliterations proved on record. In view of the submissions of both the sides and the grounds of appeal, the above said substantial question of law does arise in the present RSA No. 594 of 1989 6 appeal. In addition to that, the following substantial question of law also arise in this appeal:- “Whether the plaintiff was required to prove on record the photostat copies of the account books and in the absence thereof, no reliance is to be placed upon the true transliteration thereof?” Kundan Lal, partner of the plaintiff firm entered the witness box as PW-1. He specifically stated that the plaintiff firm is maintaining the accounts and account books regularly. Every transaction is entered in the account books and the balance is struck daily in the evening and the balance sheet is drawn on 31st March every year and thereafter new account books are started on the 1st of April. He also stated that this firm is maintaining separate accounts in respect of every debtor and is maintaining rokar bhai and khata bhai, which are being inspected by the income and sales tax departments. He proved on record true transliteration of those account books as Exs. P.1 to P.7. It is pertinent to note that these transliteration were exhibited without any objection from the side of the defendant. According to Section 34 of the Act, the entries in the book of accounts regularly kept in the course of business are relevant whenever they refer to a matter into which the court has to inquire but such entries alone are not sufficient to charge any person with liability. According to Order 7 Rule 17 of C.P.C., where the document on which the plaintiff sues is an entry in account in his possession and power, he is required to produce the account at the time of filing plaint together with copy of the entry on which he relies. As per explanation appended to that rule, by way of amendment of this Court, when the account is written in a language other than the RSA No. 594 of 1989 7 English and the language of the Court, then a translation or transliteration of the relevant entry is required to be presented together with a certificate appended that it is full and true transliteration of the original entry. It is pertinent to note that such certificate has been appended on the true transliterations produced in the court and proved as Exs. P.1 to P.7, by the above said partner of the plaintiff firm. There is no requirement of law that photostat books of the account should be filed. Now the only question remains to be determined is, whether in view of the false averments made in the replication and the evidence produced by the defendant, coupled with the admission made by Kundan Lal (DW-3), these account books, are to be held not relevant under Section 34 of the Act? As already stated above, the plaintiff firm in its replication denied the pleadings of the defendant made in the written statement that on 24.6.1984, the accounts were settled and a sum of `1,500/- was struck as balance and that the defendant had sold a buffalo to it for `3,500/- and after deducting a sum of `1,500/-, a balance of `2,000/- remained in his account. The statement about these facts was made by the defendant (DW-1). These facts, so pleaded in the written statement, were put by him to Kundan Lal during his cross-examination and he admitted the same to be correct. For proving the writing Ex. D.1, which was executed at the time of the settlement of the account, the plaintiff examined Kundan Lal as his witness as DW-3. He stated that writing Ex. D.1, which is in his hand writing, pertains to the year 1983-1984. The plaintiff himself put to him during his examination-in-chief that the plaintiff firm is maintaining the accounts. The account books were produced by this partner of the plaintiff firm at the time of his cross-examination. During his cross-examination, he categorically RSA No. 594 of 1989 8 stated that the writing Ex. D.1 was executed regarding the account for the year 1983. A perusal of that writing shows that the accounts were settled between the parties and after settling the account, it was found that `1,500/- were due from the defendant. It cannot be said that the plaintiff firm tried to conceal the facts in the khata bhai for the year 1984-1985, true transliteration of which was proved on the record as Ex. P.7. A sum of `3,500/- was credited to the account of the defendant on 24th of Sawan. Thus, credit of the price of the buffalo was duly given to him. The defendant has admitted the receipt of all the amounts so mentioned in the plaint, except a sum of `7,200/- and `300/-. The true transliterations of rokar bhai are to the effect that besides the admitted amount, he received `7,200/- in cash on 27.6.1984 and a sum of `300/- on 10.9.l984. It is pertinent to note that both these entries purport to bear his thumb impressions. Though during his cross-examination, he denied these entries and putting of his thumb impression, yet he did not examine any document and finger expert for proving that fact. He had the later opportunity and could have examined a document and finger print expert for getting his specimen thumb impression compared with the thumb impression on these entries so as to prove that those were never thumb marked by him. From the above discussion, I conclude that the plaintiff firm was able to prove that it was maintaining the account books in the due course of its business and that true entries were made therein. The oral evidence produced by the plaintiff coupled with those entries are sufficient for proving that the plaintiff also borrowed a sum of ` 7,200/- and `300/- from the plaintiff firm on the dates so mentioned in the plaint. The entries in those account books are not belied merely on account of the fact that the RSA No. 594 of 1989 9 plaintiff firm in the replication falsely pleaded that the buffalo was not sold by the defendant for `3,500/- and that the outstanding balance for the year 1982-1983 amounting to `1,500/- was not adjusted towards that amount. Therefore, both the above said substantial questions of law are answered in favour of the plaintiff and against the defendant. The first appellate court committed an illegality while upsetting the well reasoned findings of the trial court. Accordingly, the present appeal is hereby accepted. The judgment and decree of the first appellate court dated 8.11.1988 is set aside and the judgment and decree dated 17.2.1988 passed by the trial court is upheld. September 16, 2011 (GURDEV SINGH ) prem JUDGE