JAI NARAIN DASS Vs. ZUBEDA KHATOON

JUDGEMENT

(1.) THIS is a defendants' appeal. A suit for recovery of arrears of rent and damages as well as ejectment of the defendants was filed by the respondent, inter alia, on the grounds that the defen dant No. 1 had committed default in mak ing payment of rent and had also caused nuisance in the accommodation in suit. The defendants contested the suit denying these allegations. The defendant No. 1 alleged that he had paid a sum of Rs. 500/- to the plaintiff's son on 13th June, 1966 and had further remitted a sum of Rs. ISO/- by money order on 3rd October, 1966 thus covering the rent for the period from' 1st December, 1965 to 30th September, 1966. He placed reliance on the entries hi his account books in support of these pay ments. The validity of the notice for eject ment was also challenged.

(2.) THE Trial Court decreed the suit The defendants filed an appeal which was also dismissed. Both the Courts below re corded concurrent findings of fact to the effect that the defendant No. 1 appellant was the tenant, that he had not paid a sum of Rs. 500/- as alleged and as such had committed default in making payment of rent. The notice to quit was also held to be valid by both the Courts below. Aggriev ed, the defendants have come up in second appeal.

(3.) IN order to apply the provisions of Section 34 of the Act it would be neces sary to establish that the account books were regularly kept in the ordinary course of business. The entries made in such account books would then become relevant and might be considered along with the other evidence to charge any person with liability but these entries alone would not be suffi cient to fasten any liability on any person. The entries in the account books are, there fore, merely corroborative and primary evi dence is always needed to prove the trans action mentioned therein. It appears that the entries in the account books were not proved according to law. I was taken through the entire statement of Jai Narain. He has nowhere referred to the particular entries in his account books in regard to the transaction in question. He has satisfied himself by stating that the account books were maintained by him in regular course of business but that by itself was not suffi cient for bringing the case within the scope and ambit of Section 34 of the Evidence Act. Section 34 makes the particular entries in the account books relevant. The entry relevant to the payment of Rs. 500/- to the Son of the plaintiff should, therefore, have been proved without which it was not pos sible to place reliance on the account books. There is one more difficulty for the defendant in this respect. The account books obviously were not in current use. He should, therefore, have filed the original account books and then proved the rele-Vant entries according to law. In the instant case it was stated before me that the origi nal account books were produced by the defendant before the Trial Court which means that the defendant did have in his possession the original account books on the date of evidence. The defendant should, therefore, have placed before the Court the primary and not the secondary evidence, the Erimary evidence being the original account cooks. The matter would have been differ ent had the entry relied upon been in an account book which was in current use. In the present case the primary evidence hav ing not been filed the secondary evidence, namely the copies thereof, were not admis sible in evidence. Moreover, the copies were also not proved by any person. Nei ther the scribe of the relevant entry of Rs. 500/- was examined nor Jai Narain him self stated that he had either himself scrib ed the entry or had seen the Munim scrib ing the same. The Courts below were, there fore, justified in not placing reliance on Exs A-,A-7 to a-14,