Civil Revision No. 5075 of 2008

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IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Civil Revision No. 5075 of 2008

Date of decision : 12.1.2010

Pappu Cheema alias Bhupinder Singh

....Petitioner

Versus

Om Parkash

...Respondent

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CORAM : HON'BLE MR. JUSTICE S. D. ANAND

Present: Mr.Arvind Singh, Advocate for the petitioner.

Mr. R.K.Malik, Advocate for the respondent

S. D. ANAND, J.

The plaintiff-respondent had filed a suit for the recovery

of Rs.4,87,489/- (Rs.3,58,448/- as principal and Rs. 1,29,041/- as

interest thereupon at the rate of 12%) against the defendant-

petitioner. When the case was fixed for rebuttal evidence and

arguments, the plaintiff-respondent came forward with an application

under Order 18 Rule 17 of the C.P.C. to obtain the leave of the

Court to adduce additional evidence. That plea filed by the plaintiff-

respondent came be allowed by the learned Trial Court.

The defendant-petitioner is in revision against it.

In the course of the affirmative evidence, the plaintiff-

respondent had relied upon certain bahi entries which contain the

various dates on which dates amount had been paid to the

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defendant-petitioner as advance. In all, there are 45 items which

stand quoted in the relevant plaint (Annexure P-1). Item no.37 in

the course thereof pertains to payment of advance of Rs. 2 lacs on

7.8.2000.

The averments made in the course of the impugned

application (Annexure P-3), were as under:-

The plaintiff-respondent is “suffering from diabetics

diseases, therefore, amentia prevails over his mind”. The further

averment, in the context, is that “at the time of preparing the list of

roznamcha bahi Ex. P1 and P2, Rokar bahi Ex. P5 and Ex. P6 and

Khata bahi Ex. P3 and P_4 he had inadvertently slipped to enter the

entry of 7.8.2000 bearing amount of Rs. 2,00,000/- (Rs. Two lacs) by

an oversight.”

It was on that account that plaintiff-respondent applied for

the leave of the Court to include that amount in the rokar bahi and

Khata bahi.

In view of the fact that Annexure P-3 was not found to be

very expressive in the manner of need for additional evidence plea,

the learned counsel for the plaintiff-respondent was called upon to

indicate how exactly the filing of the plea had been occasioned and

what material purpose the allowance thereof would serve in

adjudication by the learned Trial Court. He explained that such like

items are first entered in the roznamcha bahi the entries made

wherein are thereafter transferred to the Rokar bahi and Khata bahi.

In that very context, learned counsel explains that the amount did

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come to be entered in roznamcha Bahi. but was not transferred to

the Rokar bahi and khata bahi In view of the clarification indicated

by the learned counsel, it is apparent that the leave of the Court is

sought for the transfer of entry at item no.37 from roznamcha bahi to

Rokar bahi and Khata bahi.

Though it is apparent that item no.37 did come to be

indicated in the plaint, it did not find mention in the documentation

adduced at the trial in the form of roznamcha bahi and khata bahi.

The plaintiff-respondent was required to prove the entries in

Roznamcha bahi, Rokar bahi and khata bahi in order to request to

drawal of an inference that the account book had been maintained

regularly and in ordinary course of business. Any amount missed out

therefrom would have indicated deficiency in the regular

maintenance thereof. If a dereliction of that type is proved on record,

it may disable the party relying upon the account book to request for

drawal of a favourable inference in accordance with law. Feeling the

heat of that omission, the plaintiff-respondent made the impugned

plea in order to be able to wriggle out of the predicament of having to

explain why the relevant entry was not transferred to Rokar B