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High Court Of Madhya Pradesh
K. L. Pandey, J.
PREMCHAND SURANA - Appellant
Versus
LAXMICHAND PARAKH - Respondents
Second Appeal 178 Of 1964
Decided On : 10/21/1967
A conclusion of fact is binding in second appeal. It is not open to challenge in second appeal on the ground that it is erroneous, however gross or inexcusable the error may seem to be. AIR 1963 SC 302, AIR 1961 SC 1720, AIR 1959 SC 1204 & 17 IA 122 relied on.
When the lower appellate Court places the burden of proof on a wrong party and its, finding of fact is the result of this wrong approach, there is what may be called a substantial defect of procedure affecting the decision of he case on merits and interference on that ground is justified section 100 of the Code of Civil Procedure. AIR 1963 SC 302, ILR 52 Mad. 83, ILR 59 Cal. 1012 & ILR 1955 Nag. 1016 relied on. [Para 9
But the question of burden proof becomes one of law only when is used as & final deciding factor and it cannot be regarded as having been so use when as in this case, the judgment is based also upon appreciation on the evidence led by the other side. 24 MPLC 318 relied on. [Para 11
(2) Evidence Act, 1872 – S. 104 - burden of proof – meaning of – burden of proof when shifts – distinction between burden of proof and onus of proof – loan and repayment –burden of proof.
The phrase 'burden of proof has two meanings-one the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts us soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e., oral or documentary evidence or admissions made by 'opposite party; it may comprise circumstantial evidence or presumption of law or fast.
Briefly stated, the burden of proof may be shifted by presumptions of law or fact and presumptions of law or presumptions of fact may be rebutted no only by direct or circumstantial evidence but also by presumptions of law or fact. AIR 1961 SC 1317 relied on.
There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. AIR 1964 SC 136 relied on. [Para 10
Where the defendant alleged repayment of an amount against a loan, and the plaintiff alleges that the payment was against another old debt, the burden proof that the amount was paid towards and old debt is on the plaintiff. [Para 10
( 1 ) THIS is a plaintiff's appeal against a reversing decree of the lower appellate court whereby his claim grounded on a promissory note was dismissed.
( 2 ) THE plaintiff Ratanchand, who filed the suit out of which this appeal arises, died during the pendency of the appeal. His son, who was brought on record as his legal representative, is prosecuting the appeal. It will, however, be convenient to refer in this judgment to Ratanchand as the plaintiff.
( 3 ) THE suit was laid against Mangalchand (defendant 1) and his father Laxmichand parakh (defendant 2), the present respondent. The Court of first instance, however, dismissed the claim against Mangalchand. The plaintiff did not appeal against that decree. Further, Mangalchand has not been joined as a party respondent in this second appeal also.
( 4 ) THE facts which are no longer disputed are these. The plaintiff was a registered moneylender and advanced, in the usual course of business loans on interest terms. Mangalchand is a natural son of Laxmichand. They used to take loans from the plaintiff. On 15 December 1958, Mangalchand executed a promissory note Ex. P-1 for an apparent consideration of Rs. 8,000/ -. The plaintiff received payment of two sums, Rs. 3,000 on 27 July 1959 and Rs. 1,500/- on 8 August 1959.
( 5 ) BRIEFLY stated, the plaintiff's case was this. Mangalchand and Laxmi-chand were members of a joint Hindu family. Mangalchand was the manager of the family. In his capacity as such manager, he executed the promissory note Ex. P-1 for a consideration of Rupees 8,000/- and orally promised to pay interest at Rs. 1/8/per cent per month. Since the loan was taken for joint family business, it was binding on Laxmichand also. After taking into account the two repayments of Rs. 3,000/- and Rs. 1,500/-, the amount remaining due, including interest came to Rs. 4,775/- which was, therefore, claimed in the suit.
( 6 ) THE defendants denied that they were members of a joint Hindu family or that the loan was taken for joint family business. They, however, pleaded that mangalchand (defendant 1) executed the promissory note dated 15 December 1958 as agent of Laxmichand (defendant 2), received only Rs. 6,900/- as consideration and promised to pay that amount by 13 April 1959. They denied that there was any oral agreement about payment of interest. According to them, the payments of Rs. 3,000/- and Rs. 1,500 were on account of a contract for purchase of a plot of land. They pleaded that they repaid on 1 September 1959, as evidenced by the receipt Ex. D-1, Rupees 7,500/- in full satisfaction of the amount due on the promissory note dated 15 December 1958. ( 7 ) THE plaintiff did not dispute that he executed the receipt Ex. D-l He, however, pleaded that it was passed for Rs. 6,500/- paid on 2 July 1956 towards a loan of rs. 5,500/- borrowed on 14 August 1954. He pleaded that no repayment was made on 1 September 1959 and that the defendants were falsely using an old receipt to show that Rupees 7,500/- was paid towards the loan on that date.
( 8 ) THE Court of first instance held that the loan was taken by Mangalchand (defendant 1) as agent of Laxmi-chand (defendant 2), that Rs. 8,000/-, and not merely Rs. 6,900/-, was the amount advanced as loan and that there was an oral agreement to pay interest at Rupees 1/8/- per cent, per month. That Court further held that Rs. 7,500/- was not repaid towards that loan on 1 September 1959. In the result, that Court, after disallowing interest and a part of the costs for failure to comply with the provisions of the Moneylenders Act, 1934, decreed the claim against only Laxmichand (defendant 2) for Rs. 3,500/- with interest at a reduced rate from the date of suit.
( 9 ) THE lower appeal Court, however, took the view that Rs. 7,500/- was repaid towards the loan of Rs. 8,000/-advanced on the foot of the promissory note dated 15 December 1958 and that the entire amount due thereon was, in fact, overpaid. The finding that Rs. 7,500 wa
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