BAIDYANATH DUTTA Vs. KANHAILAL MARWARI

JUDGEMENT

(1.) The plaintiff in this litigation was a shop-keeper who was a tenant of the defendant. From time to time the defendant took advances of money or required cloth on credit from the plaintiff and on one occasion the plaintiff paid the municipal tax for the house which the defendant had ordinarily to pay. There was an understanding that the debts of the defendant were to be set-off against the rent payable to the defendant as the rent fell due; but the defendant ignoring these advances instituted a suit for arrears of rent against the plaintiff. It would have been open to the plaintiff under Order 8, Rule 6 to make his claim by way of a set-off in the rent suit, paying court-fee on the written statement; but he preferred to institute a separate cross-suit.

(2.) The rent suit was decreed as also the plaintiff's suit; and the defendant, the plaintiff's landlord, has come in second appeal against the decree which is concerned with his debt to the plaintiff. Mr. Chatterji on behalf of the defendant-appellant suggests that the learned Subordinate Judge attached too much weight to entries in the plaintiff's book of account. Before the learned Subordinate Judge it was urged that the book was not genuine because it was not produced before the Income-tax Officer; and indeed it would appear from a reply given, by the plaintiff under cross-examination that he did not produce his book before the Income-tax Officer; but there is some ambiguity and the point is not clear. In argument before the learned Subordinate Judge, the signature of the Income-tax Officer was pointed out on the questioned book actually at the page in which the items affecting the defendant were found.

(3.) However that may be, the learned Subordinate Judge came to the conclusion that the book was an account book kept in the ordinary course of business; and he considered that it did corroborate the oral testimony of the plaintiff, which proved that the money and goods in respect of which he claimed a decree had been paid to the plaintiff, and that the municipal tax had been paid on the plaintiff's behalf. It is suggested that the book ought not to have been taken in evidence under Section 34, Evidence Act ; but the finding that the book was kept in the ordinary course of business, is a finding of fact which was within the province of the learned Subordinate Judge.