JUDGMENT :-Heard Sri M.S.

Ramachandra Rao, learned Counsel representing the appellants and Sri K. Subrahmanyam, learned Counsel representing the 1st respondent-plaintiff.

2. Sri M.S. Ramachandra Rao, learned Counsel representing the appellants Defendants 1 and 2 had taken this Court through the findings recorded by the learned Subordinate Judge, Kakinada, in O.S. No.35 of 1980 in the judgment dated 13-3-1987 and also the findings recorded by the learned III Additional District Judge, Kakinada, in AS No.31 of 1987, dated 5-6-1993, and would comment that both the Courts had not properly appreciated the evidence available on record especially in the light of the proof of entries in the account books in view of Section 34 of the Indian Evidence Act, 1872. The learned Counsel also placed strong reliance on the decision of the Apex Court in Chandradhar v. Gauhati Bank, AIR 1967 SC 1058. The learned Counsel would contend that as far as the claim of relief of interest is concerned, inasmuch as the 1st respondent-plaintiff, as such had not preferred any appeal whatsoever in the light of the Reference Order made by the Division Bench reported in A. Veera Venkata Satyanarayana Murthy v. Chekka Veera Raja Rao, 2004 (6) ALD 666 (DB), the- same may have to be answered in favour of the appellants. The learned Counsel also had drawn the attention of this Court to the relevant substantial questions of law and would comment that inasmuch as the findings recorded are perverse findings, in a Second Appeal the said findings can be disturbed. It is also brought to the notice of this Court that the conditional order passed by this Court in CMP No.20359 of 1993 dated 25-1-1994 was complied with.

3. Sri K. Subrahmanyam, learned Counsel representing 1st respondent-plaintiff in all fairness would submit that the matter was referred to the Division Bench and the Division Bench on the aspect of claim of interest had answered the reference in negative and in the light of the same, as far as the claim of interest is concerned, the appellants are bound to succeed. The learned Counsel also would further comment that no doubt elaborate findings had been recorded by the Court of first instance and also by the appellate Court in relation to the entry in the account books and also the amount of Rs.10,000/-, which is now being seriously disputed, but, on appreciation of facts both the Courts had arrived at a particular conclusion and these are predominantly questions of fact and not questions of law, this Court while deciding a second appeal to be slow in disturbing such concurrent findings recorded by both the Courts below while exercising powers under Section 100 of the Code of Civil Procedure.

4. Heard the learned Counsel.

5. On 25-1-1994, this Court made the following order:

"The second appeal is admitted in view of the substantial question of law raised in Ground No.4 of Memorandum of Grounds".

Ground No.4 specifying the further grounds as A, B, C, D, which reads as hereunder:

(a) Whether the Courts below acted perversely in upholding the Commissioners findings which are based on no evidence?

(b) Whether the Courts below erred in presuming that the disputed entries in account books are proved without any evidence being let into prove them and thus acted contrary to Section 34 of the Indian Evidence Act, 1872?

(c) According to Section 34, entries in books of account do not prove themselves. In order to charge a person with liability on the basis of books of accounts, the person relying on the entries must prove by further evidence, the payment of money which may appear in the books of account Chandradhars case (supra). This fundamental legal principle was not appreciated and followed by the Courts below?

(d) Whether the lower appellate Court was right in awarding interest in exercising its power under Order 41 Rule 33 when such interest was not awarded by the trial Court and no appeal was filed by the plaintiff questioning the order of the trial Court?

6. It is needless

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