MUKHI RAM Vs. FIRM KAMTA PRASAD-BALAM DAS

JUDGEMENT

(1.) The cross-objection in this case is not pressed. The appeal is by the defendant in an action brought by the plaintiff on a bahikhata account. It appears that business was done between the parties, the defendants (being a joint Hindu firm) purchasing cloth from the plaintiff paying from time to time sums on account of dues. As a result of the account, the plaintiff claimed a balance of upwards of Rs. 1,600 which included the price of cloth together with interest at 12 per cent. per annum according to the agreement made at the time between the parties.

(2.) Mr. Khurshed Husnain who appears on behalf of the defendant-appellant contends that the evidence upon which the learned Judge in the Court below relied was not properly before the Court in two respects. So far as Ex. 3, which was the ledger account produced by the plaintiff, is concerned, the argument is that it was not endorsed in accordance with Order 13, Rule 4, Civil P.C. What appears to have happened was that the learned Judge in the trial Court below marked the book of account with the number of the suit, the date and his signature. It is a non- compliance with Order 13, Rule 4, as it is contended that neither the name of the person producing the book or document nor a statement that it had been admitted in evidence had been included in the endorsement made by the trial Judge, and it is therefore said that in that respect the evidence upon which the learned Judge in the lower appellate Court relied in reversing the decision of the trial Court was not properly before the Court. The decision in Sadik Husain Khan V/s. Hashim Ali Khan AIR 1916 PC 27 is cited and reliance is placed on the observation of their Lordships of Judicial Committee of the Privy Council at p. 236 of the Reports. There appears to have been a controversy before their Lordships Board as to whether certain documents had been admitted in evidence; and, as there had been a noncompliance with Order 13, Rule 4, Civil P. C, a difficulty arose as to whether the document had been admitted or not and their Lordships made this observation: Finally, their Lordships feel bound to criticize adversely a practice followed in these two cases, which is as illegal as it is slovenly and embarrassing.

(3.) Reference is then made to the provisions of the Civil Procedure Code and then the following observation is made: Their Lordships, with a view of insisting on the observance of the wholesome provisions of these statutes, will, in order to prevent injustice, be obliged in future on the hearing of Indian appeals to refuse to read or permit to be used any document not endorsed in the manner required.