AGURCHAND BHOMRAJ SOWCAR Vs. DEOCHAND

JUDGEMENT

(1.) J.1. This second appeal raises an important and difficult question of law. In order to appreciate the question, it is necessary to set out a few relevant facts.2. The appellant herein had dealings with the respondents. Monies were borrowed by the respondents on khatha and also by pledging gold from time to time. While the pledge transactions carried lesser interest, higher interest was payable on khatha dealings. The case of the appellant is that as a result of an arrangement between the parties, the interest on pledge transactions were carried over to the khatha account and that the respondents were liable to pay higher rate of interest. The appellant produced his account books and examined himself as P. W. 1. He also produced correspondence to show that entries were made in his accounts in accordance with the arrangement. He strongly relied upon a letter written by the respondents dated 26-12-1958 and marked as Ex. A-8 in which it was stated by the respondents that they had also made credit and debit entries in accordance with the appellants letter.The District Munsif of Visakhapatnam accepted the appellants case and decreed the suit. But on appeal, the Subordinate Judge of Visakhapatnam came to a different conclusion. As I am satisfied that the Subordinate Judge erred in not referring to the several documents in the case as also in his view as to the effect of the non-production of the respondents accounts and as I propose to call for a revised finding, I do not wish to express myself on the merits of the respondents claim. I shall only deal with the question of law, viz., as to the inference to be drawn as against the respondents who have not produced their accounts.3. It is admitted by D. W. 1. the son of the 1st defendant, that they also maintain accounts relating to pledges and khatha transactions with the appellant. He stated that the accounts relating to 1947 and 1948 were filed in the Agency Subordinate Judges Court, Jaipur. But, so far as the ac-counts for the year 1949 were concerned, he admitted that they were in Jaipur. It was further elicited in the course of the cross-examination that the respondents posted their accounts in accordance with the account copies furnished by the appellant. While the appellant produced his regularly main-tained accounts upon which the Trial Court placed great reliance, the respondents kept back from the court their accounts. The Subordinate Judge held that no adverse inference could be drawn as against the respondents inasmuch as the appellant did not summon or give notice to the respondents to pro-duce their accounts. The point to be determined is whether this view of the Subordinate judge is right.4. The point is directly governed by an un-reported Bench decision of this Court in Rednam Dharmarao v. Rednam Viswanadha (Unreported judgment of this Court in Appeal No. 741 of 1951), to which I was a party. Reliance was placed in that decision upon the observations of Lord Shaw in Murugesam Pillai v. M. D. Gnana Sambandha Pandara Sannadhi, ILR 40 Mad 402: (AIR 1917 PC 6). It was stated thus: "Lord Shaw, in delivering the judgment of the Judicial Committee, condemned the practice which has grown up in Indian Procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing accordingly to furnish to the courts the best materials for its decision. The distinction between the documents being in the possession of third parties and the parties to the suit is clearly pointed out in the following terms: With regard to third parties, this may be right enough; they have no responsibility for the conduct of the suit; hut with regard to the parties to the writ it is, in their Lordships opinion, an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the court the written evidence in their nossession which would throw light upon the proposition.