MATHURALAL Vs. NANOORAM

JUDGEMENT

(1.) -

(2.) THIS is a defendant's second appeal.

(3.) THE only evidence relied upon by the learned District Judge for coming to the conclusion that there was no debt in existence for which the defendant had obtained the impugned decree against Ramsukh is the statement of PW. 7 Motilal. This witness has no doubt stated that nothing was due from him to the defendant Mathuralal, and, therefore, the question of Ramsukh taking the liability on his behalf to pay any amount to Mathuralal did not arise. THE trial court did not accept the statement of Motilal for two reasons, namely, that Motilal as admitted by himself was a close relation of the plaintiff Nanooram, inasmuch as Nanooram happened to be the brother-in-law of Motilal's brother-in-law, and further it suited Motilal to deny the existence of the debt due from him to Mathuralal lest he would have thereby exposed himself to the liability of paying the amount under the decree to Ramsukh. Along with those reasons the learned trial court also said that in these circumstances the lone statement of Motilal cannot be believed. THE learned District Judge, however, did not deal with the reasons given by the trial court for not believing Motilal and observed that as against this testimony of Motilal there was the solitary statement of Mathuralal, who deposed that a sum of Rs 850/11/- was originally due from Motilal on account of the price of wheat supplied by him to Motilal, and that Ramsukh took upon himself to pay this amount, and consequently Motilal was discharged from the liability. THE learned District Judge has not believed Mathuralal because Mathuralal did not produce any books of account to show that he had sold grain worth Rs. 850/11/- to Motilal. However, while making this observation the learned District Judge ignored that part of the statement of Mathuralal wherein he has stated that he did not maintain any books of account. THEre is no evidence on the record that Mathuralal used to maintain any books of account. In these circumstances, the learned District Judge was not justified in drawing an adverse inference against Mathuralal for not producing his books of account. It is also important to bear in mind that the burden of proving nonexistence of the debt which had merged in a decree at any rate lay heavily on the plaintiffs apart from the question whether an attempt to impugn the decree on the ground of non existence of debt in such circumstances can be countenanced THE learned District Judge has also ignored the written statement Ex 3 filed by Ramsukh in that suit wherein he had admitted the claim of Mathuralal against him Thus on the one hand we have the lone statement of Motilal whereas on the other we have the decree debt, supported by the evidence of the defendant Mathuralal and Ram-sukh's own admission contained in the written statement Ex 3. At this stage I would also point out at the risk of repetition that the plaintiff has failed to put forth any circumstance to show that Ramsukh was ill-disposed towards his adoptive son Nanooram and wanted to harm him. THE learned District Judge has not looked at the case from the correct angle of burden of proof lest he may not have fallen into the error which he did. THEre is yet another circumstance against the plaintiffs. If Ramsukh was really determined to suffer a decree in collusion with Mathuralal, why should he have brought into picture a third person Motilal? He could have very well executed the document in favour of Mathuralal on the basis of a personal debt instead of saying that he had taken the liability of Motilal's debt. Learned counsel for the respondent frankly conceded that he was not in a position to give any explanation on this point,