GOVIND LAXMAN SOLAPURKAR Vs. DATTATRAYA DAMODAR KELKAR

JUDGEMENT

(1.) The only point that falls for consideration is whether the Court below was justified in drawing an adverse inference against the landlord-revision-petitioner and on the basis of that adverse presumption suit of the plaintiff for arrears of' rent in part could be dismissed.

(2.) The trial Court has opined that revision-petitioner has failed to produce the diary in which some entries regarding receipts of rent were made and the diary was the basis of the suit and had the diary been produced the entries noted therein would have gone against the revision-petitioner. Therefore, an adverse presumption is drawn and the claim for rent in part is rejected on that basis. In this way, the claim for an amount of Rs. 3,400.00 was rejected which according to the revision petitioner was payable to him and for the payment whereof he had given notice to the defendant. As a result of this finding, the trail Court has dismissed the suit for ejectment also.

(3.) Learned counsel for the revision-petitioner submitted that the diary was not basis of the suit, nor had plaintiff relied on that diary. A casual statement was made by him in cross-examination that entries were made by him in the diary. He was not asked to produce the diary. According to the plaintiff diary being not basis of the suit and there being no order to him to produce the diary, the Court below could not have drawn adverse inference if the said diary was not produced. He has relied on AIR 1967 SC 1134, Ramrati Kuer v. Dwarika Prasad Singh, the Supreme Court while dealing with the provisions of S. 114 of the Evidence Act, has observed that if a party fails to produce the accounts and gives only oral evidence and the opposite party, did not make any demand to call for accounts, even if that is best evidence, at the most the Court can reject the oral evidence but no adverse inference can be drawn from non-production of accounts.