GH AHMAD Vs. GOVT OF J&K

JUDGEMENT

(1.) THE suit was for a sum of "Rs. 22,644/10/9 against two defendants on foot of agreements executed by them to the plaintiff State. The second defendant bound himself under the agreements as a surety. The first defendant, principal debtor, was an Assistant Surgeon in the service of the plaintiff State. He was deputed to England by the State for further training in medicine and for passing the London MRCP examination. This he was to do according to the agreement dated 3rd Sept. 1936 within a period of three years. The Government agreed to pay the first defendant stipend, family allowance, travelling allowance, etc. In case he failed to pass the London MRCP examination or having passed the examination did not return to the State to serve the State for a period of seven years, he as well as the surety (second defendant) were to reimburse to the State all the expenses defrayed by the State in connection with the first defendants deputation to England for the purposes, already mentioned.

(2.) SHAHMIRI J. who tried the suit passed decree against both the defendants for a sum of Rs. 20,688/7/2. This, he found, was the amount received by the first defendant from the State during the period of deputation for training in medicine. The second defendant who had stood surety for the first defendant, appealed. The appeal was heard by the Chief Justice and Kilam J. They negatived all the contentions raised by the second defendant in an attempt to get it declared that he is absolved from his obligations as surety. In this, the Division -Bench concurred with Shahmiri J. But it was pressed before the Division Bench in appeal that some further evidence was necessary for conclusively establishing that the first defendant actually received the entire amount for which a decree was passed by the trial judge. A sum of Rs. 5358/12/ -was found by the Division Bench to have been actually paid to the family of the first defendant under the suit agreements. Therefore, the further evidence which the appellate court considered necessary was only in respect of the rest of the amount for which a decree had been passed by the trial Court. There was ample evidence in the case to show that the entire amount for which the decree was passed had been remitted by the State to the office of the High Commission of India in London for payments to and on behalf of the first defendant. The appellate court thought that some evidence is necessary to show that the amounts were really paid by the High Commissioners office to the first defendant. They, therefore, remitted issue No. 2 in the suit to the trial judge with the request that "he would inquire into the amounts alleged to have been received by defendant No. 1 from the High Commissioners office." The trial judge was also directed to record a fresh finding on the issue after giving both sides opportunity to adduce evidence. In pursuance of the directions of the appellate court, Ali J. returned a finding to the effect that only the admitted sum of Rs. 5358/12/ - can be held to have been received by the first defendant and that the rest of the claim was not proved by the plaintiff. The learned Advocate General appearing for the State has vigorously attacked this finding as incorrect and contrary to the weight of evidence and probabilities of the case. The attempt of the learned counsel for the appellant, second defendant, has been to support this finding.

(3.) WE are of the view that the finding arrived at by Ali J. cannot be upheld. He has apparently been influenced by Sec. 34 of the Evidence Act , and the illustration thereto. The illustration makes it abundantly clear that it refers only to the entries in the account books of a plaintiff. The argument of self -serving admission will also be available only if a plaintiff seeks to charge a person with liability on the basis of entries in his own books of account.