MAROTI RAGHOBA Vs. MAHADEO CHINDHU

JUDGEMENT

(1.) THIS is an appeal filed under the Letters Patent from the judgment of Gruer J. in S.A. No. 39 of 1938 decided on 17-31941. The suit out of which this appeal arises was instituted by the appellants to recover Rs. 2000 on balance of accounts. The respondents were timber merchants who used to obtain their supply of timber from the appellants. According to the appellants-plaintiffs there was a balance of Rs. 2754-7-0 due from the respondents on 10-4-1929 (at the beginning of 1986 Samvat) and Rs. 2594-4-3 on 10-11-1931. On 30-10-1932 Rs. 2602-12-6 were found due on their khata. On 10-11-1931 accounts were taken and Rs. 2619-8-6 were found due. Their dealings ceased on 30-10-1932 on which day a sum of Rs. 2602-12-6 was found due from the defendants. The plaintiffs gave credit of Rs. 998-15-6 which were due to the defendants from them on account of bamboo mattings sold through their agency and found the net balance to be Rs. 1603-13-0 which with interest and some remissions amounted to Rs. 2000 which they claimed in the suit. The defence was that the transaction with the plaintiffs shop continued up to 21-11-1934 and on making accounts on that basis they contended that the plaintiffs had received Rs. 147-13-9 in excess.

(2.) THE main contention centred round the balance which was due at the end of Samvat 1983 (1926-27). During that year the plaintiffs alleged that the defendants had made purchases of timber from 18-4-1927 to 13-7-1927 amounting to Rs. 2957-8-0 and that several payments totalling Rs. 1964 were received by the plaintiffs during the same period, The plaintiffs produced their account books from Samvat 1985 (1928-29) to 1988 Samvat and the defendants, after inspection of those account books, specifically denied certain items which in Samvat 1985 totalled Rs. 388-4-9. They further denied that there was any balance against them at the beginning of Samvat 1986, which the appellants claimed to be Rs. 2754-7-0. The plaintiffs were called upon to explain the particulars of the items which rendered rupees 2754-7-0 against them. The defendants also called upon the plaintiffs to file extract of accounts for the previous years. At a later stage of the suit the account books of samvat 1983 and 1984 came to be filed. The defendants also filed the memoranda of their accounts styled diaries from samvat 1983. They are Exs. D-1 to D-9. The plaintiffs also filed some chits alleged to have been executed by Chindhu, the deceased father of respondents 1 to 3 acknowledging the quantity of timber that he purchased on credit in Samvat 1983.

(3.) THE plaintiffs appealed to this Court and contended that the learned District Judge was wrong in stating that there was no evidence besides the account books to prove the various items in dispute between the parties and pointed out that the receipts (Exs. P-4 to P-27) and the diaries (Exs. D-1 to D-9) filed by the defendants had been wholly ignored by the learned District Judge. Gruer J. who heard the appeal, held on the authority of Madhodass Gulabdas Firm v. Appaji Raoji Jadhao A.I.R. 1939 Nag. 221 that the overlooking of a mass of evidence was no ground for interference in second appeal with the finding of fact. The learned Judge also observed that the plaintiffs-appellants were to blame for not bringing evidence other than the account books to the notice of the first appellate Court.