- (1.) THIS is a second appeal by the defendants in a suit for recovery of money which was dismissed by the trial court but was decreed by the appellate court.
(2.) SUIT No. 444 of 1951 was instituted in the court of Civil Judge, Ratan-garh on 26-10-51 by Chandmal against Hazarimal, Sohanlal, Bhanwarlal and Suraj Mal for the recovery of a sum of Rs. 9,999/ -. The case of the plaintiff was that the defendants were partners in a partnership firm Gauri Shanker Sohanlal which had since closed its business and which had carried on business at Shri Karanpur, that the plaintiff carried on transaction of sale and purchase of goods through this firm and made payments from time to time, that the firm sent a statement of account to him which showed a credit balance of Rs. 9266-4-6 in his favour on 5-11-45 (Kartik Sudi 1, S. 2002) and that the amount was not paid to him in spite of several demands made from time to time. It was farther asserted that out of the amount of Rs. 9266-4-6 two items of Rs. 377-2-6 and Rs. 346-14-6 were due on account of wagering transactions and were not recoverable. The suit was brought for the recovery of the balance of Rs. 8542-3-6. It was also stated that a debit item of Rs. 821-3-3 which was shown in account Ex. 1 against the plaintiff on a date subsequent to 5-11-45 was also due on a wagering transaction and was not recoverable from him. It was alleged that a sum of Rs. 3,000/- was due by way of interest, but only a sum of Rs. 1456-12-6 was claimed as interest so as to being the suit within the jurisdiction of the civil Judge, Ratangarh. Out of the defendants Sohanlal and Bhanwarlal are the Sons of Hazari Mal and Surajmal is a stranger to the family. Hazarimal died before he could file a written statement and the other defendants were impleaded as his legal representatives. Out of them Dhanraj is the son of Hazarimal. Champalal and Jiwanmal are the sons of Bhanwarlal and Shiv Bhagwan is the son of Sohanlal. Chandmal also died before the case could be heard and his son Gulabchand was substituted as his legal representative. One written statement was filed by Surajmal. He admitted that Chand Mal carried on business in the agency of the firm Gauri Shanker Sohanlal. He also admitted that the firm sent to him an account of transactions upto 5-11-45 and that a sum of Rs. 9266-4-6 was due to Chandmal as a result of the transactions which he carried on through the firm. He further asserted that the items of Rs. 377-2-6, Rs. 346-14-6 and Rs. 821-3-3 did not relate to wagering transactions. He alleged that the firm carried on business at Sri Ganganagar also and that Chandmal entered into transactions through the agency of the firm at Ganganagar in which he incurred losses, as a result of which Chandmal owed a sum of Rs. 7212-12-9 to the firm. Another written statement was filed on behalf of Bhanwarlal, Dhanraj, Champalal and Jiwanmal. They alleged that they did not carry on any business in Sri Karanpur either in the name of Gauri Shanker Sohanlal or in any other name, and they had no connection whatsoever with the suit amount. They also pleaded that the details of the amount claimed had not been given in full and the suit was not maintainable in the form in which it had been brought. One Shri Suleman a clerk of the Civil Judge's Court was appointed as guardian ad litem of Shiv Bhagwan and he filed a written statement on his behalf denying his liability. He did not admit any of the allegations made in the plaint and asserted that he had no knowledge if any amount was due from the partners of the firm Gauri Shanker Sohanlal and that he was not liable as no money was taken for his benefit or was spent on him. Sohanlal did not file any written statement although he attended the court of the Civil Judge on one or two dates. Nor did he appear as a witness either on behalf of himself or of other defendants. An ex parte order was passed against him which he did not care to have set aside. The trial court framed the following issues: - (1) Are items of Rs. 377-2-6 and Rs. 346-14-6 credited to the plaintiff and of Rs. 821-3-3 debited to him in the account irrecoverable and the plaintiff is not bound by them? (2) Has the amount of Rs. 9266-4-6 outstanding to the credit of the plaintiff in Sri Karanpur firm on Kartik Sud 1 Smt. 2002 been received by the plaintiff and the suit amount has been paid. (3) Were Hazarimal deceased and Bhanwarlal partner in the firm Gauri Shanker Sohanlal and is the suit triable by this Court on that account? (4) Are the heirs of Hazarimal and Bhanwarlal liable to pay the suit amount and if so to what extent? (5) To what relief is the plaintiff entitled? The trial court dismissed the suit on various grounds. One was that the plaintiff owed money to the firm Gauri Shanker Sohanlal of Sri Ganganagar and the amount of Rs. 9266-4 6 was adjusted towards it leaving no balance in his favour. The other was that the suit was barred by limitation. In the opinion of the trial court the suit was one for accounts and was governed by Art. 47 of the Bikaner Limitation Act which corresponds to Art. 89 of the Indian Limitation Act. The period of limitation under Art. 47 of the Bikaner Act was 3 years. The period of limitation under articles of the Bikaner Limitation Act corresponding to Arts. 62, 64, 85, 115 and 120 of the Indian Limitation Act was 6 years. The third ground was that only Sohanlal and Surajmal were partners in the firm Gauri Shanker Sohanlal and not Hazarimal. The fourth ground was that the suit is not maintainable in the form in which it has been brought. The plaintiff preferred an appeal against the decree. The learned District Judge was of the opinion that there was no satisfactory evidence on record to show that any amount was due against the plaintiff in favour of the firm Gauri Shanker Sohanlal at Sri Ganganagar. On the point of limitation he was of the opinion that the suit was not one for accounts and Art. 47 of the Bikaner Limitation Act had no application to it. He was of the view that Art. 107 of the Bikaner Act which corresponds to Art. 120 of the Indian Act was applicable. Further he held that the right to sue accrued to the plaintiff on 5-11-45 on the basis of account Ex. 1 and the suit which was instituted on 26-10-51 was within limitation. Lastly he held that Hazari Mal and Bhanwarlal were also partners in the firm Gauri Shanker Sohanlal. He did not deal with the question whether the suit was maintainable in the form in which it was brought. I have heard the learned counsel for the parties and have perused the record. I shall first deal with the case against Surajmal, as the defence put forward by him is different from that put forward by the other defendants who contested the suit. Surajmal admitted that he was a partner in the firm Gauri Shanker Sohan Lal. A copy of a statement of account Ex. 1 was filed along with the plaint. This account was not admitted by Surajmal. He however admitted that a statement of account upto 5-11-45 was sent to the plaintiff by the firm which showed a credit balance of Rs. 9265-4-6 in his favour on 5-11-45. He admitted that the firm had closed its business as alleged in para 3 of the plaint. He asserted however that the firm carried on business at Ganganagar also and the plaintiff had dealings with the Ganganagar firm as well. In para 5 of the written statement Surajmal asserted that as a result of the sale of Gur subsequent to 5-11-45 a further sum of Rs. 3452-6-9 was credited to the plaintiff in his Karanpur account and this credit item along with the credit item of Rs. 9266-4-6 was transferred to his Ganganagar account in which he had incurred losses after 5-11-45 to such an extent that despite the transfer of the two credit items there was an over-all debit balance of Rs. 7212-12-9 against him. Surajmal also asserted in his written statement that the items of Rs. 377-2-6, Rs. 346-14-6 and Rs. 821-3-3 did not relate to wagering transactions as was alleged by the plaintiff in his plaint. On the basis of the defence put forward by Surajmal the trial court framed issues No. 1 and 2 in the suit. No evidence was adduced by the parties on issue No. 1. The result is that it must be held that the item of Rs. 821-3-3 does not relate to a wagering transaction and is recoverable from the plaintiff. As for the items of Rs. 377-2-6 and Rs. 346-14-6 the plaintiff has himself not claimed them in the suit and these items cannot be decreed in his favour. To discharge the burden which lay on Surajmal to prove that the amount of Rs. 9266-4-6 had been paid off by adjustment Surajmal examined himself as a witness and produced the Khatas of the plaintiff in the Karanpur and Gangangar shops. These are Ex. B. 1 and Ex. B. 2. So far as Ex. B. 1 is concerned it only shows the two credit items of Rs. 9265-4-6 (instead of Rs, 9266-4-6 as mentioned in Ex. 1) and of Rs. 3452-6-9 in favour of the plaintiff on Kartik Sudi 1 and Baishak Sudi 8 respectively. It also shows that these two items were transferred to the Ganganagar shop. There are some debit items also amounting to Rs. 2902-6-9. The Khata is prepared from other account books. The numbers of pages of these other account books have been shown against the items but these other account books were not produced. Ex. B. 2 purports to be the Khata of the plaintiff in the Ganganagar shop. The items of Rs. 9265-4-6 and Rs. 3452-6-9 have been credited in favour of the plaintiff. There is one other credit item of Rs. 701-7-6. There are a number of debit items, the total of which comes to Rs. 20630-15-6. An over-all debit balance of Rs. 7212-12-9 appears against the plaintiff in this Khata. Here again the entries have been taken from other original account books, the page numbers of which are given. But these other account books have not been produced. The trial court relied on these two Khatas Ex. B. l and Ex. B. 2 and held on their basis that there was an overall debit balance of Rs. 7212 12-9 against the plaintiff and the sum outstanding against the firm in account Ex. 1 had been paid off by adjustment. The suit was accordingly dismissed by the trial court. After the close of the evidence of the plaintiff and the other defendants but before the examination of Surajmal an application was made on his behalf for permission to produce some other account books and documents. This permission was refused by the trial court on the ground that the application was grossly belated. The appellate court agreed with the trial court so far as refusal to permit the late production of documents is concerned. It is contended before me on behalf of Surajmal defendant that the court below erred in disallowing the prayer of Surajmal for producing additional evidence at a late stage. It is pointed out that in the Khata of Ganganagar firm which was filed the numbers ,of pages of Naqal Bahi and Roker had been referred to, which showed that they were in existence. Further it is asserted that Surajmal wanted to produce letters and telegrams received from the plaintiff himself the genuineness of which could be established satisfactorily by him if a chance were given. I asked the learned counsel for the appellants to produce all the documents before me which his client wanted to produce at a late stage in the trial court. These documents even if they are assumed to be genuine, do not go to prove that the plaintiff placed an order for carrying out the transactions on his behalf in which losses are alleged to have occurred. The mode of keeping accounts followed by the firm also does not inspire confidence as the entries of transactions which resulted in debit balances were not made in the Rokar which is required to be written and totalled from day to day in accordance with the normal custom amongst business men. These transactions are only entered in the Naqal Bahi on one page. Further the dates on which the transactions took place are not entered even in the Naqal Bahi or in any document to be produced on behalf of Surajmal. No useful purpose will therefore be served by allowing the defendant to produce this additional documentary evidence.
(3.) THE lower appellate court was of the opinion that the Khata Bahis are not admissible under sec. 34 of the Evidence Act. THE learned counsel for the respondent has sought to support his finding by referring to the decision in Chandi Ram vs. Jamini Kanta (l ). THE learned counsel for the appellants has on the other hand relied on the decisions in the Deputy Commissioner of Bara Banki vs. Ram Parshad (2) and Maung Sit vs. Ma Su (3 ). In my opinion a Khata Bahi is a book of account and if it is maintained in the regular course of business it is admissible in evidence under sec. 34 of the Evidence Act. What weight can be attached to the entries in the Khata which have not been supported by the production of the original account books from which the entries in question have been copied is a different matter altogether. THE lower appellate court was of the opinion that the entries in the Khata unsupported by the original entries are of no evidentiary value. Even full details of the transactions are not given in Khata entries. Pages of the Rokar and Naqal Bahi have been referred to. THEse account books have not been produced. As such no evidentiary value can be attached to the entries made in the Khata. I have referred above to the fact that even if Surajmal was allowed to produce the additional evidence which he sought to produce at a late stage it would not be possible to, hold that the transactions entered in the Ganganagar Khata, in which losses are alleged to have been incurred, were entered into on the instructions of the plaintiff. I accordingly confirm the finding of the lower appellate court that Surajmal has failed to prove that the amount of Rs. 9266-4-6 was completely adjusted towards losses incurred by the plaintiff in transactions with the Ganganagar firm. It is contended on behalf of Surajmal that there is no evidence on record on the basis of which a decree can be passed against him. It is also contended that the suit in its present form is not maintainable. As has already been mentioned above it was not mentioned in the plaint that the plaintiff was filing a copy of the account which he had received from the firm along with the plaint. A copy of an account was filed by the plaintiff along with the plaint. It was marked Ex. 1 in accordance with the old practice prevailing in the subordinate courts under which all documents were marked with exhibit number before they were proved. From an endorsement on Ex. 1 it appears that the plaintiff brought the original of it to court on some date behind the back of the defendants and got the copy compared with it. Neither the plaintiff nor any of his witnesses stated in court that Ex. I was a true copy of the statement of the account received from the firm. The original statement of account was not produced in court at the hearing. Surajmal did not admit the copy Ex. 1 which had been filed. No question was put to him in cross-examination whether Ex. 1 was a true copy of the account which was sent by the firm to the plaintiff. The result is that the only evidence on record to prove that an account was sent by the firm Gauri Shanker Sohanlal to the plaintiff of transactions upto 5-11-45 in which there was a credit balance of Rs. 9266-4-6 in his favour is the admission contained in the written statement of Surajmal. With regard to the admission of Surajmal in his written statement it is contended on his behalf that the whole of his admission contained in the written statement should either be accepted as correct or rejected and a part of it cannot be accepted and another part rejected. Reliance was placed on the following decisions - M. M. Essabhoy vs. M. Haridas (4) and Gangaram vs. Hetram (5 ). None of these decisions support the proposition that either the whole of the case put forward in the pleadings must be accepted or no admission made in it can be relied upon. What these decisions lay down is that a conditional admission in a pleading cannot be so dissected as to accept a part and reject the rest. It must be either accepted subject to the condition or not accepted at all. In the present case the admission made in para 3 of the written statement admitting that an account of transactions upto 5-11-45 was sent to the plaintiffs in which there was a credit balance of Rs. 9266-4-6 was an unqualified admission. It was not qualified by the further plea contained in para 5 of the written statement to the effect that the amount was adjusted towards losses which the plaintiff incurred as a result of subsequent transactions with Ganganagar branch of the firm, Gouri Shanker Sohanlal. The case against Surajmal is proved by the admission made by him in para 3 of the written statement. Coming now to the question whether a suit was maintainable in the present form, the facts to be considered are these. In para 2 of the plaint it was pleaded that the plaintiff carried on transactions of sale and purchase of goods through the firm Gauri Shanker Sohanlal and made payments from time to time. This part of the allegation made in the plaint was admitted by Surajmal in his written statement. What the allegation amounts to is that there was a mutual open and current account between the parties. Further in para 3 it was stated that an account was sent by the firm to the plaintiff of dealings upto 5-11-45 in which there was a credit balance of Rs. 9266-4-6 in his favour. This was also admitted by Surajmal in his written statement. It was not stated in the plaint that the accounts were settled upto 5-11-45. Nor was it stated that after 5-11-45 no transaction took place between the parties. In fact in account Ex. 1 which was filed by the plaintiff and which is admissible against him as an admission although it has not been proved against the defendants there is a debit balance of Rs. 821-3-3 of a date subsequent to 5-11-45. The question which therefore arises is whether the suit is maintainable for the recovery of this admitted balance of Rs. 9266-4-6. In my opinion it is maintainable. As I have pointed out above the original account which was sent to the plaintiff was not produced at the hearing. A copy of it was filed from which it appears that the original which was received by the plaintiff did not purport to bear the signatures of the parties. From the fact however that the plaintiff filed a suit for the balance shown in his favour in this account it can be inferred that at the time of instituting the suit he accepted the account as correct. The plaintiff did not say that Ex. 1 contained the whole of the account between the parties. So we may assume for the present limited purpose that it contained only a part of the account between the parties. There is ample authority for the proposition that an unsigned account sent by one party to another which the latter accepts becomes an account stated which furnishes a cause of action for instituting a suit. There is also authority for the proposition that a suit can be brought on the basis of an account stated even though there are other unsettled accounts remaining between the parties. In Jalim Singh V. Chonee Lal (6) a Division Bench of the Calcutta High Court held that a suit was maintainable on an unsigned settled account and that such a suit is governed by article 115 and not by article 64. Article 62 of the Limitation Act of 1871 which corresponded to article 64 of the Limitation Act of 1908 did not provide in the third column that statement of account should be in writing and signed by the defendant or by his agent as is provided under article 64. Lawrence Jenkins C. J. observed as follows in the above case: - "the function of the third column of the second Schedule of the Limitation Act is, not to define causes of action but to fix the starting point from which the period of Limitation is to be counted. " ;