Nobody seems to have also cared to look into the provisions of Section 163, Evidence Act, and see for himself whether in the circumstances of this case it has any application. Under that section it was the plaintiff's duty to have required the defendants, who had taken inspection, to tender the account books as evidence of both parties. Having taken inspection of plaintiff's books of account the defendants took the risk of making them evidence of both parties in the case. In fact they needed no further proof and were admissible and should have been admitted in toto.
As held in Rajeswri Kuar v. Rai Bal Krishan [1887] 9 All. 713.
it would be a monstrous thing if the party sued were allowed to call for the accounts of the plaintiff and extract from them just such items as proved matters of defence...and were not to allow those items which make in favour of the plaintiff. The High Court held that the books must be admitted in toto. Their Lordships think the High Court were entirely right....
IN THE HIGH COURT OF NAGPUR
Decided On: 23.09.1927
Kisan Ghule Vs. Puransa and Ors.
Citation: AIR 1928 Nagpur 119
1. I have confined the arguments to grounds 8, 9 and 10 of the memorandum of appeal as I thought that the trial of the case has been very improper and full of irregularities of procedure.
2. The suit was based on a mortgage and not on account-books but plaintiff desired to tender his relevant account book entries as evidence and, therefore, mentioned them as pieces of evidence in his list of reliance. The defendants taking advantage of this mention applied for inspection of plaintiff's account-books with a, view to extract their defence out of them. The plaintiff protested but notwithstanding his protest the inspection was allowed and the defendants took inspection and filed an additional written statement admitting some and disputing certain other items entered in the books. But they did not make their defence intelligible by filing extracts of the relevant entries to which the same related.
3. It was the duty of the Court to examine the defendants further as regards the disputed items and call upon them to produce extracts of accounts on which they relied in support of their, contention and then ask the plaintiff to admit or deny the defendants assertions and to produce such extracts of accounts as may be necessary. The procedure laid down for discovery of documents was followed but only partially. Nobody seems to have also cared to look into the provisions of Section 163, Evidence Act, and see for himself whether in the circumstances of this case it has any application. Under that section it was the plaintiff's duty to have required the defendants, who had taken inspection, to tender the account books as evidence of both parties. Having taken inspection of plaintiff's books of account the defendants took the risk of making them evidence of both parties in the case. In fact they needed no further proof and were admissible and should have been admitted in toto : cf. Mahomed Khan v. Abdul Bahman [1903] 5 Bom. L.R. 380 and Rajeswari Kuar v. Rai Bal Krishan [1887] 9 All. 713. Failure on his part to avail himself of this privilege has landed the plaintiff into a difficulty and has entitled a dismissal of his claim.
4. Then again, even though the plaintiff pointed out the omission of the Court below to examine him in answer to the defendants' additional rejoinder filed after taking inspection of plaintiff's books of account, the Court below failed to rectify its own mistake, and tried to technically shift the error on to the shoulders of the plaintiff. This has naturally ended in a disaster to the plaintiff's cause. The Court ought to have re-opened the case and examined the parties for focusing points of controversy between them and given them opportunity to substantiate their respective cases.
5. Then a third defect of procedure which I think is very flagrant was to draw an adverse inference against the plaintiff for nonproduction of his account books, even though he sued upon a bond or mortgage and not on the account books. Such an inference is not permissible unless the other party has called upon the plaintiff to produce such documents and the latter has failed to comply with the demand. Here he had complied with the demand of the defendants and produced his account books for their inspection and they had in fact taken the inspection and "extracted" their "defence out of them." It is urged by plaintiff that the defendants have taken full notes or extracts of the entries relating to their dealings with the plaintiff but have kept them back. I have only to draw the lower Court's attention to the observations of their Lordships quoted 'in Mulla's Civil Procedure Code edition 8 at p. 527 under the heading "Non-disclosure, of documents - Presumption." The appellant has produced some extracts of his accounts in this Court. They have been placed on record. They will have to be compared with the originals and perhaps supplemented the defendants will also have to be called upon to say what they may choose to say as regards their relevancy and genuineness if they challenge it. If they persist in denying the debit items, the plaintiff must be given the chance of corroborating them by the evidence of persons who know anything about them. As held in Rajeswri Kuar v. Rai Bal Krishan [1887] 9 All. 713.
it would be a monstrous thing if the party sued were allowed to call for the accounts of the plaintiff and extract from them just such items as proved matters of defence...and were not to allow those items which make in favour of the plaintiff. The High Court held that the books must be admitted in toto. Their Lordships think the High Court were entirely right....
6. I do not think it will serve any purpose to keep the case pending on my file and call for findings, as the defects in the procedure which the Court below is ordered to remedy are such as necessitate further pleadings and trial. Fresh pleadings and issues will have to be recorded and framed it is, therefore, desirable to reopen the case wholly rather than only partially. I, therefore, remand the case for fresh decision after further trial in accordance with law.
7. The costs of this appeal shall be costs in the cause, the appellant shall have refund of the Court-fee paid on the memo, of appeal.
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