Decided on January 06,1960

NARAIN Respondents


- (1.)THIS is an application for review of the judgment dated, 19th September 1956 passed by the Judicial Commissioner of Ajmer. Owing to the integration of Ajmer with the Stare of Rajasthan and the abolition of the Judicial Commissioner's court, the application has been presented to this Court.
(2.)THE judgment in question affirmed the decision of the Subordinate Judge of Ajmer decreeing the suit of the plaintiff-respondent for a sum of Rs. 3,500/ -. THE suit was filed on the basis of dues relating to transactions between the plaintiff and the defendant entered in Bahi Khata accounts. THE plaintiff's case was that during the period, 13th November 1947 to 15th April 1952, the defendant had borrowed from the plaintiff on various dates a total sum of Rs. 29,033/11/6, out of which he had repaid a sum of Rs. 24,033/11 /6, leaving a balance of Rs, 5,000/ -. He further alleged that on the 9th of April 1953 when the accounts between the parties were adjusted, the defendant in a separate 'chitha' or a piece of paper acknowledged his liability for the sum of Rs. 5,000/- which bore his signature and agreed to pay the same with interest within a year. THE defendant in his pleadings denied the transactions. He challenged the admissibility of the document containing the acknowledgment of dues and he further stated that the same had been executed under undue influence. He stated that he had not actually borrowed any money from the plaintiff, but that the plaintiff had from time to time made certain deposits with him ; but he did not state what actually was the amount of the deposits. It was also pleaded that a sum of Rs. 1285/13/3 had been paid by the defendant in addition to the payments admitted by the plaintiff, and in case any decree was passed, he wanted that he should be given instalments for payment of the amount.
The learned Subordinate Judge, who tried the suit, held that the 'chitha' executed by the defendant was in the nature of a promissory note, not payable on demand, and since it was insufficiently stamped, it was not admissible in evidence. He however, found that the plaintiff had been able to establish his claim on the basis of the accounts produced by him ; but since the claim for a sum of Rs. 3,500/- only was held to be within time, he decreed the suit for that amount only. On appeal the learned Judicial Commissioner substantially agreed with the finding of the trial court and affirmed the decree.

Mr. Bhargava on behalf of the petitioner submits that there is an error apparent on the face of the record in the judgment in question, inasmuch as the decree is based on the accounts filed by the plaintiff, which in the absence of any finding that the accounts were kept in the regular course of business were not relevant and as such not admissible in evidence at all. He accordingly contends that the decree should be vacated. The learned counsel takes exception to the observation made in the judgment which is as follows : - "it is pointed out that admittedly the plaintiff did not make the daily total or strike the balance. But as remarked by the learned Subjudge these are the requirements of a day work or 'rokar' and not of a ledger as such. The ledgers Exs. 1-5 are not therefore for that reason inadmissible in evidence although strong corroboration will be necessary. " On the strength of the above passage Mr. Bhargava argues that under sec. 34 of the Evidence Act, the accounts were not admissible to prove the transactions and no decree could be passed on that footing. Sec. 34 provides that entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. The learned counsel lays stress on the words "regularly kept in the course of business" and submits that since it had not been shown that the accounts in question had been kept in the regular course of business, they could not be held to be relevant for purposes of granting a decree to the plaintiff; and even if the accounts were so kept, they would not be sufficient in law to charge the defendant with liability by themselves, unless there was other reliable evidence to prove the transactions in question. There is no doubt that this is an error in the judgment of the learned Judicial Commissioner, but the question arises whether this error can be said to be a mistake or error apparent on the face of the record or it is a mere error of law on which we would not be justified in interfering with the judgment under O. 47, R. 1 of the Code of Civil Procedure. Reliance has been placed by the learned counsel for the petitioner on the decisions of the Supreme Court to show that the words "error apparent on the face of the record" should be liberally construed so as to cover a case of this kind. The decision in Moran Mar Basselios Catholicos vs. Most Rev. Mar Poulose Athanastus{l) related to a case where the Judges of the High Court had been misled by a misconception as to the nature of the concession made by the advocate or of the attitude taken up by the party. The High Court appeared to have assumed that a concession had been made when none had in fact been made or that the Court misconceived the terms of the concession or the scope and extent thereof and thus came to a wrong decision. It was held that it might be regarded as a case of "error apparent on the face of the record. " Though it did not appear on the record itself, it had to be brought before the Court by way of statements made in the affidavit supporting the application for review. In those circums-tances it was pointed out by the Supreme Court that the word "record" was not to be construed in any restricted sense, so as to include only the document which initiates the proceedings, the pleadings and the adjudication and exclude the evidence and other parts of the record. The facts, therefore, in that case were entirely different and we are unable to see that in the circumstances of this case it can be of much use to us in holding that there was an error apparent on the face of the record. In the other case Rati Vishnu Kamath vs. Ahmad lshaque (2), their Lordships of the Supreme Court observed that in order to attract the jurisdiction of the Court to issue a writ of certiorari, there should not be merely an error of law, but there should be something more than a mere error. In other words, it must be an error manifest on the face of the record. But the real difficulty arises not in the statement of the principle as in the application thereof to the facts of a particular case. They posed a question : When does an error cease to be mere error, and become an error apparent on the face of the record?" and answered thus: - "no error could be said to be apparent on the face of the record if it was not self evident and if it required ad examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. " It is, therefore, left to consider whether in the circumstances of this case, it can be said that it is an error apparent on the face of the record so as to necessitate our interference in review. If the matter, had rested merely on the observations to which exception has been taken by the learned counsel in the judgment under review, we might have been inclined to interfere. But the learned Judicial Commissioner has referred to a number of other circumstances arising upon the evidence which could very well justify the decision in question. He refers to the evidence of the plaintiff himself who has proved the transactions and the evidence of another witness Gulabchand (witness No. 2 for the plaintiff) who corroborated the plaintiff's evidence on the point and who was regarded as an independent witness by the Court. He then refers to the admissions in the written-statement and the conduct of the defendant in denying in his deposition what he had stated in his pleadings. He refers also to the further fact that the defendant, who maintains accounts had not cared to produce them in order to rebut the plaintiff's evidence on the point. These materials, in our opinion, could very well justify the decree which has been passed in the case. Even if we concede to the argument of Mr. Bhargava that in relation to the accounts there was an error apparent on the face of the record, the error did not vitiate the decision as such and we would not be justified in interfering with the judgment which on the whole appears to be correct. It is not necessary for us to make any observation at this stage about the admissibility or otherwise of the 'chitha' produced by the plaintiff in acknowledgment of the dues. Prima facie the document appeared to be admissible ; but as we have said, on the whole the judgment of the learned Judicial Commissioner is correct and does not call for interference in review.

We accordingly dismiss the application, but in the circumstances without costs. .


Click here to view full judgement.
Copyright © Regent Computronics Pvt.Ltd.