MT HAR DEI Vs. SRI KISHUN

JUDGEMENT

(1.) This is a second appeal arising only out of the question of the proper application of Section 34, Evidence Act. The facts are simple. The plaintiff sued the defendant on a balance of account for three years and claimed a sum of Rs. 1,158- 2-0. Certain other issues arise which we need not mention except one which deals with the question of whether the plaintiff was the owner of the firm or not, and had the right to sue. The plaintiff supported her case by the production of bahis and by the evidence of her munib. The trial Court dealt with the question of whether the accounts had been proved, as follows: The plaintiff's witness Munib has come into the witness-box and has said that Rs. 1,089 is inserted in the bahi khata which is the balance drawn against the defendant; and then he has said that Rs. 30 is of interest and Rs 1-4-0 is of registration and notice expenses; thus the whole amount comes to Rs. 1,120-11-0. This is the whole evidence of the plaintiff about the amount. The plaintiff ought to have shown (and all the more so when the defendant has denied the fact that there is any sum due) by some independent evidence that the entries represent real and honest transactions and that the moneys were paid in accordance with those entries. The plaintiff has not shown this and thus the burden of proof is not discharged by him. Issue decided accordingly.

(2.) It dismissed the suit. We quote this finding of the trial Court because the lower appellate Court has practically followed in its footsteps. In this latter judgment the learned Judge says: The plaintiff's witness merely road out the entry from the bahi khata and no evidence was adduced on behalf of plaintiff that the transaction mentioned in the account-books of Ram Prasad Raghunath Das had in reality taken place between the said firm and the defendants. On the mere strength of entries in account-books a decree cannot be passed when the defendant puts the plaintiff to proof and denies his liability for payment of any sum.

(3.) The learned Judge accordingly dismissed the appeal. We were not satisfied with this approach to the point calling for decision, and we invited counsel for the appellant to give us a transliteration and translation of the Munib's statement, for even so much of it as was noted in the judgments of the lower Courts suggested that the case might be at least analogous to the decision in Dwarka Prasad V/s. Sant Bux [1896] 18 All. 92, a decision which has stood unshaken since it was pronounced.