JOSEPH Vs. KURUVILI A PHILIP

JUDGEMENT

(1.) Appellant is the defendant. Plaintiff filed the suit for recovery of Rs. 4,000/- alleged to be due to him as the balance of purchase price in respect of a lorry KLK 4265 sold by him to the defendant. In Second Appeal 326 of 1975 this Court gave an opportunity to prove the relevant entries in the diaries produced by the defendant. The case was remitted to the Sub Court. The Sub Judge after considering the evidence allowed the appeal and decreed the suit.

(2.) It is the case of the plaintiff that the defendant issued Ext. P-1 cheque for the amount due to him and that on presentation it was dishonoured by the bank. Exts. P-2 and P-4 would prove the fact that the cheque was dishonoured. In the written statement defendant contended inter alia that he paid the amount due to the plaintiff and he could not obtain back the cheque as it was not readily available with the plaintiff and as he promised to return it later.

(3.) Counsel for the plaintiff submitted that even if the relevant entries in Exts. D-1 to D-4 diaries are proved it will not in any way be sufficient to establish the defendant's case as the self serving nature of it cannot be overlooked. A private diary regularly kept and containing records and facts contemporaneously made may be of some value. It can be used for contradicting or corroborating a witness or to refresh his memory as provided under S.144, 157 and 159 of the Evidence Act. But such user does not make the document itself evidence. It may also come under S.32(2) if the requirements of that Section are satisfied. But the entries in the diaries cannot be treated as evidence of the facts stated in it in favour of the person who has made it as against the opposite party.