Gopala Pillai vs Sayyed Muhammad

C.A. Vaidialingam, J.—In this appeal, on behalf of the appellant, the learned Advocate General attacks the decree and judgment of the learned Subordinate Judge of Quilon dismissing the plaintiff''s suit O. S. No. 168/1957. The plaintiff instituted the suit in question for recovery of a sum of Rs. 4949-1-3 from the defendant stated to be due as balance outstanding from the defendant in respect of pattuvaravu transactions that he had with the plaintiff, including interest that had accrued due on the original amount that was found due as on 31-12-1955. According to the plaintiff the defendant had pattuvaravu dealings both in cash and rice from the plaintiff''s shop and that as per the plaintiff''s accounts a sum of Rs. 4888-12-0 was due from the defendant as on 31-12-1955, In spite of demand it is the case of the plaintiff that the amount has not been paid and therefore the suit was instituted for recovery of the said amount from the defendant.

The defendant admitted that he had pattuvaravu dealings with the plaintiff in money and rice from 1953 till the end of April 1955. But the defendant pleaded that he had those transactions with the plaintiff because he had taken some contract work in the Chavara Minerals which contract work came to a close by the end of April 1955 and therefore after 1st May 1955 he had no dealings with the plaintiff either in cash or by way of taking rice on credit. But the defendant also pleaded that in respect of the amount due to the plaintiff at the end of April 1955 a sum of Rs. 670/- was found due. But the defendant set up a further plea that the plaintiff''s son-in-law, one Balakrishna Pillai, the defendant''s nephew one Abdul Rashid, and a gentleman from Coimbatore by name Ali Khan were conducting as partners a business at Quilon in the name of "The Happy World Amusement Park", which ended in loss and inasmuch as the plaintiff appears to have suffered loss the attempt of the plaintiff is to recover the same from the defendant by making false entries in the books of account. Therefore the defendant pleaded that excepting a sum of Rs. 670/- that he owed to the plaintiff in respect of pattuvaravu transactions that he had with him, the rest of the claim is absolutely false and unfounded.

The learned Subordinate Judge after a consideration of the materials placed before him ultimately came to the conclusion that the plaintiff has not proved that the defendant had pattuvaravu transactions with him from 1st May 1955 till 31st December 1955 and that he has also not satisfactorily established the dealings which are disputed by the defendant. I will revert to the various items of evidence that have been adverted to by the learned Subordinate Judge, as well as his findings on these aspects a little later, when I consider the attack levelled as against the dismissal of the suit instituted by the plaintiff by the learned Advocate General on his behalf. Ultimately the learned Judge dismissed the plaintiff''s claim excepting to the extent to which it was admitted by the defendant namely in the sum of Rs. 670/-together with interest on the same as directed in the decree. The rest of the claim was disallowed. It is this dismissal substantially of the claim of the plaintiff by the learned Subordinate Judge that is under attack in this Appeal by the learned Advocate General on behalf of the plaintiff appellant.

Mr. K. Velayudhan Nair, learned counsel for the defendant respondent, before dealing with the contentions of the learned Advocate General regarding the merits arising for decision in this appeal, has taken a preliminary objection to the maintainability of the appeal in this Court. According to Mr. Velayudhan Nair the appeal, as against the decree of the learned Subordinate Judge is not maintainable in this Court, and inasmuch as the value of the suit itself was only Rs. 4949-1-3 the proper forum which could entertain the appeal is the Court of the District Judge of Quilon. Therefore the learned counsel urged that this appeal will have to be dismissed on this short ground. On the other hand, the learned Advocate General, having due regard to certain decisions of this Court, to which I will refer presently and in view of the provisions contained in the Kerala Civil Courts Act, 1957 which have no retrospective effect prior to amendment urged that the appeal filed in this Court is perfectly maintainable. Under the provisions of the Travancore-Cochin Civil Courts Act, 1957, which were in force on the date of institution of the present suit, the proper forum for entertaining an appeal as against the decree of a Subordinate Judge is this Court, and therefore the learned Advocate General urged that the preliminary objection raised on behalf of the respondent will have to be over-ruled.

Before I consider the attack based as against the judgment of the learned Subordinate Judge on merits, 1 will deal with the preliminary objection raised by Mr. Velayudhan Nair learned counsel for the defendant respondent regarding the maintainability of the appeal in this court. The suit itself was originally instituted on 6-2-1956 in the District Court of Quilon, and it was later on transferred to the Subordinate Judge''s Court, Quilon on 22-6-1957 and numbered as O. S. 196/1957. The suit was dealt with and disposed of by the learned Subordinate Judge by his judgment dated 10th December 1958. I have already mentioned that the value given in the plaint is Rs. 4949-1-3. Deducting the sum of Rs. 670-1-0 which has been decreed in favour of the plaintiff, the balance amount is the subject of consideration in this appeal. But there is no controversy that whichever is the forum for the appeal, that will have to be decided by the valuation given in the original plaint, as well as the court which disposed of the suit itself.

In my view, the position appears to have been well settled by the Division Bench decision of this Court rendered by Koshi C. J., and myself, reported in Kunju Kunju v Neelakantan (1957 K. L. J. 882) wherein we had to consider the principles laid down by the Judicial Committee of the Privy Council in the decision reported in the Colonial Sugar Refining Company Ltd. v Irving (1905 A. C. 369) which principles have been reiterated and re-affirmed by our Supreme Court in the decision reported in Garikapatti Veeraya Vs. N. Subbiah Choudhury, . Having due regard to the principles laid down in the decisions referred to above, the learned Chief Justice and myself considered the provisions of the Travancore Cochin Civil Courts Act, 1951, as well as the provisions of the Kerala Civil Courts Act, 1957 before it was amended by the Kerala Civil Courts (Amendment) Act, 1959, Act 12 of 1959. After considering all those provisions we have expressed the opinion that in respect of suits instituted before the coming into force of the Kerala Civil Courts Act, 1957, appeals arising from decisions of Subordinate Judge''s Courts wherein the valuation is below Rs. 7500/-, will have to be filed in this court, irrespective of the date on which judgment is pronounced. We have also in the earlier part of the judgment in that decision held that the Kerala Civil Courts Act, 1957 (Act I of 1957) was not intended to be retrospective in operation. Therefore normally one should proceed on the basis that the position is now concluded as against the stand urged on behalf of the respondent. But Mr. Velayudhan Nair learned counsel for the respondent relied upon a decision of my learned brother Madhavan Nair J., reported in M. R. M. Sons v Union of India ( 1960 K. L. T. 1327), as well as a later Division Bench decision by T. K. Joseph Ag. C. J. and Mathew J., reported in Narayanamoorthy Konar v Viswanathan (1963 K. L. T. 471) as supporting the stand that is now taken by him in this appeal. Therefore the learned counsel urged that in this case the appeal will have to be filed not in this Court, but only in the District Court, Quilon. The question is whether those decisions in any manner detract from the principles laid down by the Division Bench decision of this Court in Kunju Kunju v Neelakantan (1957 K. L. J. 882).

Before I advert not only to the decision rendered by Koshi C. J. and myself, as well as the other decisions, referred to above, it is desirable at this stage to advert to some of the salient provisions of the three enactments in question, namely the Travancore-Cochin Civil Courts Act, 1951 (Act 22 of 1951), the Kerala Civil Courts Act, 1957 (Act 1 of 1957) and the Kerala Civil Courts (Amendment) Act, 1958 (Act 12 of 1959). Under the Travancore-Cochin Civil Courts Act, 1951 it will be seen that Section 12 provides that the jurisdiction of a District Judge or a Subordinate Judge extends, subject to the rules contained in the Code of Civil Procedure, 1908, to all original suits and proceedings of a civil nature, Sub-section (2) of Section 12 states that the District. Court shall be deemed to be the principal Civil Court of original jurisdiction in the District. Sub-section (4) of Section 12 which deals with the jurisdiction of a District Munsiff, is to the effect that it extends to all like suits and proceedings not otherwise exempted from his cognisance of which the amount or value of the subject matter does not exceed Rs. 3000/-. But there is a proviso to sub-section (4) of Section 12 which empowers the Government by following the procedure indicated therein, to confer even on a District Munsiff jurisdiction in respect of suits the amount or value of the subject matter does not exceed Rs. 5000/-. Under this provision the Government is also given the power to withdraw such jurisdiction by issuing a notification. I am only referring to this aspect because normally the jurisdiction of a District Munsiff extends only in respect of suits and proceedings in which the amount or value of the subject matter does not exceed Rs. 3000/-; but if there is a notification issued by the Government under the proviso to sub-section (4) of Section 12 the jurisdiction may be extended up to Rs. 5000/-. Similarly, u/s 22 which deals with appeals, sub-section (1) thereof provides that appeals from decrees and orders of the District Munsiffs and Subordinate Judges, when such appeals are allowed by law, will lie ordinarily to the District Court. But there again an exception is made that when the amount or the value of the subject matter of the suits exceeds 3000 rupees, whether it is decided by the District Munsiff or a Subordinate Judge, the appeal shall lie to the High Court. Sub-section (2) of Section 22 provides that appeals from original or appellate decrees or orders of a District Court, when such appeals are allowed by law, shall lie to the High Court. Pausing here, it will be seen that under sub-section (1) of Section 22 a direct appeal even against a decision of a District Munsiff lies to the High Court provided the amount or value of the subject matter of the suit exceeds 3000 rupees, and that is the same case in respect of decrees or orders of a Subordinate Judge also. Therefore, if the provisions of the Travancore-Cochin Civil Courts Act, 1951, apply, inasmuch as in this case the value of the suit is above Rs. 3000/-, notwithstanding the fact that the suit was decided by the Subordinate Judge, the appeal will lie only to the High Court. But another point arises as to what is the nature of the right of appeal and when exactly that right accrues to the party in a litigation. That is a different aspect which will be dealt with by me later.

When that was the position, the Kerala Civil Courts Act, 1957 (Act 1 of 1957) came into force with effect from 12-1-1957. There are three provisions in this statute which require to be noted, namely Sections 11, 12 and 13. It may be stated that in both the Travancore-Cochin Civil Courts Act, 1951 as well as the Kerala Civil Courts Act, 1957, the different classes of courts in a District have been enumerated, namely court of a District Judge, court of a Subordinate Judge, and court of a Munsiff. Section 11 of the Kerala Civil Courts Act, 1957 deals with jurisdiction of a District Court and Subordinate Judge''s Court in original suits. Sub-section (2) of Section 11 provides that the jurisdiction of a Munsiff''s Court extends to all like suits and proceedings not otherwise exempted from its cognisance of which the amount or value of the subject-matter does not exceed five thousand rupees. Section 12 deals with appeals from decrees and orders of District Court or Subordinate Judge''s Court. So far as decrees or orders of District Court or Subordinate Judge''s Court are concerned, it is provided in Section 12 that, subject to what is stated in Section 13, regular and special appeals, when such appeals are allowed by law, shall lie from the decrees or orders of a District Court or a Subordinate Judges Court to the High Court. Section 13 which deals with appellate jurisdiction of District Court and Subordinate Judge''s Court, provides that appeals from the decrees and orders of a Munsiff''s Court and where the amount or value of the subject matter of the suit does not exceed 7500 rupees, from the original decrees and orders of a Subordinate Judge''s Court shall, when such appeals are allowed by law, lie to the District Court. It is not necessary to note the two provisos occurring in the Section. Therefore it will be seen that having due regard to the provisions of Sections 12 and 13 of the Act, normally if the provisions of that statute apply, in cases where the amount or value of the subject matter of the suit does not exceed 7500 rupees and if the decision has been rendered in respect of such a suit by the Subordinate Judge, an appeal will lie only to the District Court. We are not concerned in this case with decrees and orders of Munsiff''s Court.

It will be seen that u/s 13 of the Kerala Civil Courts Act, 1957 as it originally stood, the forum for an appeal against a decree of a Subordinate Judge''s Court is the District Court provided the amount or value of the subject matter of the suit does not exceed Rs. 7500/-. But there was an amendment effected to that Act by the Kerala Civil Courts (Amendment) Act, 1958 (Act 12 of 1959). It is not necessary to refer to the various other amendments effected by this Act, excepting to note the amendment effected to Section 13 of the parent Act. That amendment was effected by Section 4 of the Amendment Act of 1958. That provides that Section 13 of the original Act has to be renumbered as sub-section (1) of that Section; and in sub-section (1) so renumbered, for the words "seven thousand and five hundred rupees", the words "ten thousand rupees" are to be substituted. Pausing here, it will be seen that according to the amendment, if a decision is rendered by a Subordinate Judge in a suit the amount or value of which is less than Rs. 10,000/-, according to the amended provision, an appeal will lie to the District Court, i.e. the jurisdiction of the District Court to entertain appeals has been enhanced. Sub-clause (2) of Section 4 of the Amendment Act incorporated subsection (2) in Section 13 of the original Act. Section 13 (2) clearly shows that the provisions of sub-section (1) shall apply to original decrees and orders of a Subordinate Judge''s Court passed after the commencement of the Civil Courts (Amendment) Act, 1959, notwithstanding the fact that the suits in respect of which such decrees and orders have been passed, were instituted before such commencement.

The provisions of sub-section (2) of Section 13 of the Kerala Civil Courts Act, 1957 as it now stands after the amendment clearly indicates that the provisions of the statute in respect of the forum for an appeal will apply even in respect of suits instituted before the commencement of the Amendment Act, provided the decrees or orders are passed by the Subordinate Judge''s Court after the date of Commencement of the Act. There is no controversy that the Amendment Act came into force only on 24-3-1959. Therefore if the amendment Act applies there can be no controversy that the present appeal is maintainable only before the District Court. Similarly if the provisions of the Kerala Civil Courts Act, 1957 as they stood before the amendment, also apply there can be no controversy that the forum for an appeal against the decree of a Subordinate Judge''s Court is the District Court, and not this Court. The question that arises is whether the provisions of these statutes apply and as to whether the decision of this Court reported in Kunju Kunju v Neelakantan (1957 K. L. J. 882) has in any manner been modified by any later decision of this court. That is an aspect that will have to be considered by me.

But before I advert to the Division Bench decision of this Court referred to above, it is necessary to refer to the decision of the Privy Council, as well as the decision of the Supreme Court, because it is the principles that have been laid down in those decisions that have been adopted by Koshi C. J., and myself while rendering the decision in Kunju Kunju v Neelakantan (1957 K. L. J. 882). In Colonial Sugar Refining Company v Irving (1905 A. C. 369) the Judicial Committee of the Privy Council had to consider the effect of the Australian Commonwealth Judiciary Act, 1903. It must be stated that proceedings in that case were initiated on 25-10-1902 in the Supreme Court of Queensland. The Supreme Court rendered their decision in the proceedings on 4th September 1903. But in the meanwhile, on 25-8-1903 the Australian Commonwealth Judiciary Act, 1903 had been passed and had received the Royal assent. Under that statute appeals as against decisions of the Supreme Court of Queensland had to be filed not in the Privy Council according to the law as it originally stood, but to the High Court of Australia. But notwithstanding the passing of the Judiciary Act referred to above, and notwithstanding the fact that a decision was rendered by the Supreme Court prior to the passing of that statute, the party aggrieved by the decision of the Supreme Court filed an appeal before the Privy Council. Objection was taken by the respondent to the maintainability of the appeal before the Privy Council on the ground that the right of appeal to the Privy Council has been taken away by the Australian Commonwealth Judiciary Act, 1903. That contention is dealt with by the Privy Council, and one of the questions that has been considered by their Lordships of the Privy Council is as to whether a right of appeal is a vested right, and if so, what is the period or stage when that right accrues to a litigant. Lord Macnaghten, delivering judgment on behalf of Their Lordship''s of the Privy Council, considers at page 372 of the report, the question as to whether The Australian Commonwealth Judiciary Act, 1903 is retrospective or not, and observes: "The Judiciary Act is not retrospective by express enactment or by necessary intendement. And therefore, the only question is: was the appeal to His Majesty in Council a right vested in the appellants at the date of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. To deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle their Lordships see no difference between abolishing an appeal altogether and transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well-known general principle that statutes are not to be held to act retrospectively unless a clear intention to that effect is manifested." From the extract quoted above, it will be seen that a right of appeal is a vested right and not a mere matter of procedure. The Privy Council also observes that to deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. And the Privy Council also says that unless the Statute has been retrospectively brought into force and has clearly destroyed the right to approach the Privy Council by way of appeal in a pending action, it should not normally be considered to be taken away by a statute which comes into force during the pendency of the litigation. In that particular case the Privy Council, over-ruling the objections of the respondent came to the conclusion that the appeal filed before the Privy Council notwithstanding the passing of the Australian Commonwealth Judiciary Act, 1903, was perfectly valid and competent.

Our Supreme Court in Garikapatti Veeraya Vs. N. Subbiah Choudhury, had to consider the question as to whether in respect of a suit instituted prior to the commencement of the Constitution, the valuation of which was above Rs. 10,000/- but less than Rs. 20,000/-, the right of an appeal, which, but for the Constitution, could have been taken to the High Court and then later on to the Federal Court, was lost by the coming into force of the Constitution. That question is very exhaustively considered by the majority judgment which was rendered by S. R. Das, C. J., No doubt Venkatarama Ayyar J., has taken a different view. Their Lordships,'' after an exhaustive survey of all the authorities bearing on this point, refer to the observations of Lord Macnaghten in Colonial Sugar Refining Company Limited v Irving ( 1905 A. C. 369). The Supreme Court also takes note of the fact that that decision has been followed by a later decision of the Privy Council reported in AIR 1927 242 (Privy Council) . The learned Chief Justice then summarises the principles which emerge from a consideration of all the decisions referred to above. That summary is contained at page 553 of the report, and that is to the following effect:

From the decisions cited above the following principles clearly emerge:

(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding.

(ii) The right of appeal is not a mere matter of procedure but is a substantive right.

(iii) The institution of the suit carries with it the implication that all rights of appeal then in force are preserved to the parties thereto tilt the rest of the carrier of the suit.

(iv) The right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

(v) This vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.

In particular, it will be seen that under proposition No.(iii) it is the view of the Supreme Court that the institution of the suit carries with it the implication that all rights of appeal arc preserved to the parties thereto till the rest of the career of the suit. If I may say so with respect, the stage at which this right accrues to the party is emphasised in proposition No.(iv) that the right of appeal is a vested right and such a right to enter the superior Court accrues to the litigant as and from the date the lis commences, i. e., the moment a suit or other proceeding is instituted, it is well known the lis commences. If that is so, according to the Supreme Court, the right to enter a superior Court by way of appeal accures to the litigant the moment he institutes the action in question. Then the learned Judges, if I may say so with respect, in the latter part of proposition No.(iv) emphasise that though the right of appeal may be actually exercised when the adverse judgment is pronounced that right is to be governed by the law prevailing at the date of institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal.

Going by the principles enunciated above, if I may say so with respect, in this case it will have to be held that on the date when the suit was instituted, namely 6-2-1956, in the District Court, the lis commenced and all the rights the party had under the Travancore-Cochin Civil Courts Act, 1951, are safeguarded by approaching this Court directly as against any decision that may be rendered in the suit. No doubt that decision may be rendered by the court long afterwards. But anyhow the forum of appeal has to be considered, not having due regard to the provision of law prevailing on the date when the judgment is rendered, but really as on the date when the lis itself commenced. No doubt this principle may not apply if that vested right of appeal had been categorically and unambiguously taken away by a subsequent enactment; and that is reiterated by Their Lordships of the Supreme Court in proposition No.(v) extracted above. But the question is as to whether the provisions of the Kerala Civil Courts Act, 1957 are retrospective or not.

That question directly arose for consideration before the learned Chief Justice and myself in the decision reported in Kunju Kunju v Neelakantan (1957 K. L. J. 882). It will be seen that there were three appeals filed in this Court as against decisions rendered by the Subordinate Judge''s Courts concerned. One of the appeals was from the Malabar area, and that was governed by the Madras Civil Courts Act, and I do not think it necessary to consider that appeal for the present purpose. But it will be seen that two of the appeals were as against the decisions rendered by the Subordinate Judge''s Court of Attingal, in suits which were originally instituted in the District Court, Trivandrum, but later on transferred to the Subordinate Judge''s Court, Attingal. Admittedly those suits were instituted in the District Court concerned, long prior to the commencement of the Kerala Civil Courts Act, 1957. After decision was rendered by the Subordinate Judge''s Court in the said suit, appeals were filed in this court. Objection was taken regarding the maintainability of the appeals in this Court after the coming into force of the Kerala Civil Courts Act, 1957. No doubt the appeals themselves were filed in this court after the coming into force of that Act, and therefore the question that this court had to consider was whether the appeals were governed by the provisions of the Travancore-Cochin Civil Courts Act, 1951 or the Kerala Civil Courts Act, 1957. In that connection, Koshi C. J., who rendered the Judgment, refers to the observations of Lord Macnaghten in the decision of the Privy Council reported in Colonial Sugar Refining Company Limited v Irving (1905 A. C. 369), to which reference has already been made by me earlier. The learned Chief Justice summarises the five propositions laid down by Das, C. J., in the decision of the Supreme Court reported in Garikapatti Veeraya Vs. N. Subbiah Choudhury, . After considering all these aspects, the learned Chief Justice winds up the discussion by holding that the Kerala Civil Courts Act, 1957 is not retrospective in its operation. We have also indicated in that decision that the necessary conclusion that follows from our decision is that appeals filed in this Court against decisions of the Subordinate Judge''s Courts, notwithstanding the fact that the valuation of the suit was below Rs. 7500/-, are perfectly competent. We have also observed in that decision that if any appeals had been preferred before the District Court, they would have to be returned for presentation to this Court. The learned Chief Justice states that "Appeals arising from decisions of the Subordinate Judge''s Courts in suits instituted before the Kerala Civil Courts Act was enacted, where the valuation is below Rs. 7500/- will have to be filed in this Court irrespective of the date on which the judgment is pronounced." It will be particularly noted that the view of this Court in that decision was very clear and unambiguous, namely that the Kerala Civil Courts Act, 1957 was not retrospective and it does not apply to the appeals then before us. We have also made it clear that the Act will not apply in respect of suits instituted before the Kerala Civil Courts Act was enacted where the valuation is below Rs. 7500/-, irrespective of the date on which judgment is rendered, i.e. in cases where judgment has been rendered after the coming into force of the Act, the provisions of that Act will not apply for purposes of considering the forum where appeals against such decisions have to be filed. We have also made an observation in that decision to the effect that the provision as to appeals to the District Courts from the decisions of Subordinate Judge''s Courts will remain a dead-letter for some years to come unless the Legislature thinks it proper to make the provision retrospective. And the effect of this observation was the amendment effected to Section 13 of the original Act by the Kerala Civil Courts (Amendment) Act, 1958 (Act 12 of 1959) which came into force on 24th March, 1959.

I have already adverted to the provisions of the Kerala Civil Courts (Amendment) Act, 1958. Under the Amendment Act it is made clear that in respect of suits of the valuation mentioned therein the right of appeal as against the decisions of a Subordinate Judge is to the District Court notwithstanding the fact that the suits themselves had been instituted prior to the commencement of the Act, but subject to this qualification, namely that the decrees or orders are passed after the coming into force of the Act. In this case, T have already indicated that the decision was rendered by the Subordinate Judge''s Court on 10th December, 1958, i.e., long before the coming into force of the Kerala Civil Courts (Amendment) Act, 1958. Therefore that provision does not apply. According to the decision of this Court in Kunju Kunju v Neelakantan (1957 K. L. J. 882) it also follows that the Kerala Civil Courts Act, 1957 also does not apply. Therefore normally I should hold following the decision of the Division Bench of this Court referred to above, that the provisions of the Travancore-Cochin Civil Courts Act, 1951 apply to the present case, and the appeal is perfectly competent in this Court.

But Mr. Velayudhan Nair, learned counsel for the respondent referred me to the decision of my learned brother Madhavan Nair J., reported in M. R. M. Sons v Union of India (1960 K. L. T. 1327), as well as the decision of a Division Bench of this Court reported in Narayana Moorthi Konar v Viswanathan (1963 K. L. T. 471), where according to the learned counsel a slightly different view has been expressed. Before T refer to these decisions it is necessary to refer to another Division Bench decision of this Court rendered by Sankaran C. J., and Anna Chandy, J., reported in Ramunni Kurup v Chirutha (1959 K. L. R. 1289). No doubt in that case it will be seen that the suit was valued at Rs. 5919/- and it was instituted prior to the passing of the Kerala Civil Courts (Amendment) Act, 1958. It will also be seen that the decree in the suit was also passed prior to the passing of the Amendment Act. In that decision the learned Chief Justice States that appeals against decrees and orders in suits the value of which is less than ten thousand rupees would not doubt after the amendment lie to the District Court. But having regard to clause (2) of Section 4 of the Kerala Civil Courts (Amendment) Act, 1958, the learned Chief Justice emphasises that decrees and orders passed prior to the passing of the Amendment Act will be governed by the pre-existing law. The learned Chief Justice further states that under that law appeals against decrees and orders in suits of the category as the present one would lie to the High Court and not to the District Court. Pausing here for a minute, though this decision does not refer to the Division Bench decision in Kunju Kunju v Neelakantan (1957 K. L. J. 882), the principles laid down in this decision are almost identical to the principles laid down by us in the earlier decision, namely Kunju Kunju v Neelakantan (1957 K. L. J. 882). No doubt in Ramunni Kurup v Chirutha (1959-1 K. L. R. 1289) this court had to consider as to whether the provisions of Section 13 of the Kerala Civil Courts (Amendment) Act, 1958 will apply. But the point to be noted is that if those provisions do not apply, then it is only the old law that would apply, namely the Travancore-Cochin Civil Courts Act, 1951, because the Kerala Civil Courts Act, 1957 has been held to be not retrospective. No doubt in the decision in Ramunni Kurup v Chirutha (1959-1 K. L. R. 1289) the Division Bench even takes the view that even in respect of an order passed by a court in a suit in which decree had been passed prior to the commencement of the Kerala Civil Courts (Amendment) Act, 1958, the provisions of the old law will govern. But it is not necessary to consider this aspect, excepting to note that the principles laid down by myself and Koshi, C. J., in Kunju Kunju v Neelkantan (1957 K. L. J. 882) have been affirmed to this extent, namely that if the provisions of the Kerala Civil Courts (Amendment) Act, 1958 do not apply, the old law will apply namely the Travancore-Cochin Civil Courts Act, 1951.

In M. R. M. Sons v Union of India (1960 KLT 1327)Madhavan Nair J., had to consider the question regarding the forum where an appeal is to be filed as against a decision rendered by a Munsiffs Court to whom a suit was transferred by the District Court. In that case it will be seen that in view of the provisions contained in the Travancore-Cochin Civil Courts Act, 1951, no suit can be instituted as against the Union of India in a Munsiffs Court and therefore the suit appears to have been instituted in the District Court. But after the passing of the Kerala Civil Courts Act, 1957, inasmuch as the embargo placed upon the Munsiffs Court from entertaining such suits stood withdrawn by the repeal of the Travancore-Cochin Civil Courts Act, 1951, the District Court transferred the suit for disposal to the file of the Munsiffs Court. The Munsiffs Court disposed of the suit on 21st July, 1958. That date of decision was certainly after the Kerala Civil Courts Act, 1957 came into force, namely 12-1-1957, and before the Kerala Civil Courts (Amendment) Act, 1958 came into force, i.e., 24-3-1959. It is seen that against the decision of the Munsiffs Court an appeal was filed to the District Court. But objection was taken before the District Court regarding the maintainability of the appeal and the District Court, accepting that objection, returned the appeal for presentation to the High Court. In the High Court the appeal was filed along with an application to excuse the delay in filing the appeal. It will be seen from the judgment that no attempt appears to have been made by the appellant to satisfy the High Court that the return of the appeal by the District Court was in any manner erroneous. On the other hand it is seen that the respondent before the learned Judge took up the position that the appeal filed in the High Court is perfectly competent in view of the decisions of the Supreme Court and also of the Privy Council referred to above. The learned Judge no doubt reiterates this position, namely that the right of appeal is a vested right and is governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal. The learned Judge in fact says that this proposition is above challenge. But the learned Judge says that the further contention that the application of this rule will apply even when a suit instituted in a court of a particular grade stood transferred to a court of lower grade and it was disposed of by the latter court, is difficult to accept. The learned Judge''s view appears to me that the proposition that the right of appeal is a vested right and is governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of decision or at the date of filing of the appeal, does not apply to "cases where a suit was instituted in one court but was subsequently transferred or withdrawn to another court of a different lower grade and disposed of by the latter". The learned Judge further says that in such cases the forum of appeal is to be determined as at the date of the institution of the proceeding in the suit in the court which came to decide the suit. On this line of reasoning the learned Judge ultimately comes to the conclusion that inasmuch as the suit was tried and disposed of ultimately by the Munsiff''s Court, notwithstanding the fact that it was originally instituted in the District Court, the forum of the appeal will have to be considered by the law prevailing as on the date when judgment was rendered, and it is therefore the view of the learned Judge that the appeal was properly filed in the first instance in the District Court, and that the District Court acted erroneously in returning the appeal. The learned Judge has also expressed the opinion that there is no provision in any statute which gives a right of appeal to a party directly to the High Court against a decision of the Munsiff''s Court. It is not necessary for me to go into this controversy because I have already referred to the fact that under sub-section (1) of section 22 of the Travancore-Cochin Civil Courts Act, 1951, under the particular circumstances mentioned therein, a right of appeal is given directly to the High Court as against a decision of the Munsiff''s Court also. But the learned Judge came to the conclusion that on the date when the proceedings in the case before him were commenced in the Munsiff''s Court, the forum for the appeal from the decree of the Munsiff''s Court was only the District Court and not the High Court and therefore the appeal was rightly preferred in the District Court of Trivandrum. In consequence the learned Judge directed return of the appeal filed in this Court.

In the decision of my learned brother Madhavan Nair J., referred to above, there is absolutely no reference to the Division Bench decision of this Court reported in Kunju Kunju v Neelakantan (1957 K. L. J. 882). As I have already indicated, that Division Bench decision clearly laid down two propositions, namely that the Kerala Civil Courts Act, 1957 is not retrospective in its operation, and secondly that the forum of the appeal will be the High Court as against decisions of Subordinate Judge''s Courts in respect of suits instituted prior to the commencement of the Kerala Civil Courts Act 1957, notwithstanding the fact that such decisions themselves were rendered after the coming into force of that statute. I am particularly emphasising this aspect because in the decision in Kunju Kunju v Neelakantan (1957 K. L. J. 882) the suit was originally instituted in a court of higher grade, namely the District Court, and that Court transferred the suit to a court of lower grade, namely the Subordinate Judge''s Court, and it was the latter court that ultimately disposed of the suit; and it is in that connection that we had to consider the question as to where exactly the appeal had to be filed. Evidently the decision of this Court in Kunju Kunju v Neelakantan (1957 K. L. J. 882) does not appear to have been brought to the notice of my learned brother Madhavan Nair J. when he rendered the decision in M. R. M. Sons v Union of India (1960 K. L. T. 1327); because the learned Judge says that the principle that the right of appeal is a vested right, and is governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of the decision or at the date of the filing of the appeal, will not apply to cases where the suit was instituted in one court of a higher grade, but was subsequently transferred to another court of a different grade and disposed of by the latter court. That exactly was the position before us in Kunju Kunju v Neelakantan (1957 K. L. J. 882), and notwithstanding the fact that the suit was tried and disposed of by a court of lower grade, than the one where it was originally instituted to which case the learned Judge says that principle will not apply, we held otherwise. Therefore if I may say so with respect, the observations made by Madhavan Nair J., in the decision reported in M. R. M. Sons v Union of India (1960 K. L. T. 1327) are too wide; and if I may say so again with great respect run counter to the principles laid down by the Supreme Court, as well as by the direct decision of the Division Bench of this court in Kunju Kunju v Neelakantan (1957 K. L. J. 882). I have already adverted to the fact that proposition No. (iv) laid down by Das C. J., in Garikapatti Veeraya Vs. N. Subbiah Choudhury, categorically emphasises that the right to enter a superior Court by way of appeal accrues to a litigant as on the date the lis commences and not on the date the decision is rendered by the court. If I may say so with great respect, the observations of the learned Judge in M. R. M. Sons v Union of India ( 1960 K. L. T. 1327) run counter to the proposition enunciated by the learned Chief Justice of the Supreme Court in the decision referred to above. That is why, I should think that the decision of this Court in Kunju Kunju v Neelakantan (1957 K. L. J. 882) was not evidently brought to the notice of the learned Judge when the learned Judge made those observations.

The decision of the Division Bench of this Court reported in Narayana-moorthi Konar v Viswanathan (1963 K. L. T. 471) need not detain me long. It will be seen that in that case the learned Judges refer to the decision of the Division Bench of this Court in Kunju Kunju v Neelakantan (1957 K. L. J. 882) and observe that the Kerala Civil Courts Act, 1957 was amended in view of that decision. That shows that the learned Judges did not in any manner cast any doubt about the correctness of that decision. In that case the learned Judges had to consider the question as to the forum for appeal, in respect of an order passed by the Subordinate Judge''s Court in execution proceedings on 6th July 1959, i. e. after the date of the commencement of the Kerala Civil Courts (Amendment) Act, 1958. Therefore, having due regard to the provisions contained therein, inasmuch as the order was passed by the Subordinate Judge''s Court, in a suit the value of which was less than Rs. 10,000, the learned Judges, if I may say so with respect, applying the provisions of Section 13 of the Kerala Civil Courts Act, 1957, as amended by the Kerala Civil Courts (Amendment) Act, 1958, held that the appeal to the District Court was perfectly competent. In that connection, no doubt the learned Judges refer to the connotation of the word ''instituted'' occurring in Section 13 (2) of the Kerala Civil Courts (Amendment) Act, 1958. But that question does not arise in the case on hand.

Therefore, respectfully adopting the principles laid down by the Judicial Committee of the Privy Council in the decision reported in Colonial Sugar Refining Company v Irving (3905 A. C. 369), and which have been reiterated and re-affirmed by Their Lordships of the Supreme Court in the decision reported in Garikapati v Subbiah Choudhry (A. I. R. 1957 S. C. 540), and also following the decision of this Court reported in Kunju Kunju v Neelakantan (1957 K. L. J. 882), which is really based upon the decisions of the Privy Council and the Supreme Court adverted to above, the contention of the learned counsel for the respondent that this appeal is not maintainable in this Court, will have to be over-ruled. In consequence I hold that this appeal is perfectly competent and maintainable in this Court.

Coming to the merits, it will be seen that the learned Subordinate Judge has considered the documentary evidence adduced by the plaintiff as well as by the defendant in the case. So far as the books of account produced by the defendant, namely Exts. D15 and D16 are concerned, it is the view of the learned Judge that those accounts cannot certainly be accepted; because it is the view of the learned Judge that those accounts do not appear to have been written in the regular course of business. In fact, it is also seen from the judgment of the learned Judge that the counsel for the defendant did not want to rely on those accounts. So far as the plaintiff is concerned, it is seen that he produced his book of account Ext. P.1 which is the ledger relating to the period from 21-11-1955 to 31-12-1955. He has also produced Ext. D 6 a ledger for an anterior period, namely 29-3-1955 to 21-11-1955. Another ledger Ext. D 7 for a further anterior period, namely from 1-1-1955 to 29-3-1955 has also been produced by the plaintiff. The corresponding nalvazhi for these periods, namely Exts. P.9 and P. 10, have also been produced by the plaintiff. The plaintiff has also given evidence as P.W. 1, and his clerk P.W. 2 who appears to have joined the plaintiff''s service some time in the middle of July 1955 and who claims to have written most of the entries, has also been examined. The plaintiff has also relied upon the letters Exts. P.6, P.7 and P.8 to substantiate his contention that even after 1st May 1955 the defendant was having pattuvaravu transactions with the plaintiff and therefore the defendant''s plea that he had no pattuvaravu transactions with the plaintiff after 1st May 1955 should not be accepted. The learned Subordinate Judge is not prepared to reject Ext. P.1 as false. Ext. P.1, as I mentioned earlier, is the ledger for the period from 21-11-1955 to 31-12-1955. I have also indicated earlier that the corresponding nalvazhi for that period is Ext. P. 10. The learned Judge is also of the view that notwithstanding the fact that P.W. 2 had joined the plaintiff''s service only from about the middle of July 1955 and the witness claims to have written the accounts from 1-1-1955, nevertheless the genuineness of those entries also do not matter because according to the learned Judge, the defendant himself admits having had transactions with the plaintiff up to the end of April 1955. Therefore, Ext. D6 also has not been as such rejected by the learned Judge.

But the view of the learned Subordinate Judge appears to be that the plaintiff, while giving evidence as P.W. 1, has stated that he does not go to the shop very often and he goes to the shop only on rare occasions and that when he was not in the shop, P.W. 2 or his clerk would be in charge of the business and he would make the advances. The learned Judge in this connection is of the view that P.W. 2 has categorically stated that he joined the service of the plaintiff only in the middle of July 1955 and ordinarily he would not make the advances without the permission or consent of the plaintiff. Asked about the details of the various transactions occurring in Exts. D6 and P. 1, as to which are the transactions which had been advanced by P.W. 2 on his own responsibility and as to which are the advances which he advanced on the advice or consent of the plaintiff, P.W. 2 has stated that it is not possible for him to give details regarding those aspects.

Apart from this the learned Judge has also considered the evidence of the plaintiff in respect of the payment made by him to the Quilon Municipal Council in respect of the Happy World Amusement Park under Ext. D 14 dated 9-12-1955. That amount admittedly, as claimed by the plaintiff himself has been paid by him on 9-12-1955, But the plaintiff''s case is that the said amount was paid by him at the instance and on behalf of the defendant and that the said amount does not find a place in the books of account produced by him. But it is no doubt seen that on 8-12-1955 a sum of Rs. 902/- which admittedly includes the sum of Rs. 874-12-6 paid under Ext. D 14, also finds a place in the books of account of the plaintiff. The plaintiff himself has later, in the re-examination, accepted the position that the amount covered by Ext. D 14, though incurred for the Happy World Amusement Park business, has been shown as a debit against the defendant. The learned Judge also takes note of the fact that after 1st May 1955 the entire dealings shown in the books of account arc only cash dealings and that the defendant has not purchased any rice or credit. These circumstances, according to the learned Judge, go to probabilise the defendant''s case that his contract in the Chavara Minerals came to end by the end of April 1955 and that he had no further necessity for pattuvaravu dealings with the plaintiff after that date. The learned Judge is also prepared to accept the further case of the defendant that the plaintiff''s son-in-law, the defendant''s nephew, as well as a third party from Coimbatore were running the Happy World Amusement Park which must have resulted in loss, and the plaintiff by making necessary debit entries as against the defendant is only attempting to recoup the loss incurred by him in that business. Therefore in view of all these circumstances the learned Subordinate Judge ultimately came to the conclusion that the plaintiff cannot be considered to have established his claim as against the defendant.

The learned Advocate General, on behalf of the plaintiff-appellant, placed considerable reliance upon the entries contained in the books of account Exts. D 6 and P.1 as well as the entries contained in the corresponding nalvazhi account books. The learned Advocate General referred me in particular to the letters Exts. P.6, P.7 and P.8. According to the learned counsel those letters have been written by the defendant admittedly after 1st May 1955, and those letters according to the learned Advocate General, will clearly show that the defendant and the plaintiff were having dealings, and brushing aside of all that evidence by the lower court was absolutely unjustified. The learned Advocate General also pointed out that P.W. 2 has categorically spoken to the various entries occurring in Exts. D 6 and P.1. Though P.W. 2 had entered service only in July 1955 the learned Judge has categorically stated that the mere circumstance that he wrote the books of account from 1-1-1955 will not in any manner operate as against the case set up by the plaintiff because the defendant himself admits having had transactions up to 30th April 1955. The learned Advocate General pointed out that the view of the learned Subordinate Judge that there has been no proper proof of the various entries in the books of account is absolutely erroneous. In this connection, the learned Advocate General referred me to the evidence of P.W. 2 wherein he has categorically referred to each and every entry found as against the defendant in Exts. D 6 and P. 1. Therefore the learned Advocate General pointed out that over and above the amount admitted by the defendant himself the trial court should have granted a decree for the entire claim as prayed for by the plaintiff.

The learned counsel for the respondent Mr. Velayudhan Nair no doubt urged for acceptance of this Court the reasons given by the lower court for coming to the conclusion that the plaintiff cannot be considered to have proved his case by the evidence on record. The learned counsel quite naturally stressed that admittedly after 1st May, 1955 there are no transactions in rice as between the plaintiff and the defendant, and in view of the fact that all the rest of the transactions for which the defendant is sought to be made liable relate to cash dealings, the plea of the defendant that those must be expenses incurred by the plaintiff in connection with the Happy World Amusement Park business, which case has been accepted by the lower court is true and should also be accepted by this court. The learned counsel no doubt pointed out that at the most it can be stated that there is direct evidence adduced by the plaintiff regarding the transactions covered by the account book Ext. P.1 which relates to the period 21-11-1955 to 31-12-1955. Prior to that date, the learned counsel pointed out, the evidence adduced on the side of the plaintiff cannot be accepted by this court.

I have given due consideration to these aspects that have been presented before me on merits both by the learned Advocate General as well as by Mr. Velayudhan Nair, learned counsel for the respondent. In my view, the dismissal substantially of the plaintiff''s claim by the learned Subordinate Judge was totally unjustified in the circumstances of this case. The learned Judge, as I have pointed out, was not prepared to reject the book of account Ext. P.1. In fact the learned Judge quite categorically states that Ext. P. 1 which takes in the period 11-11-1955 to 31-12-1955 and also deals with a fairly substantial part of the amount which is the subject of claim in this suit, and that there is absolutely no ground to hold that the plaintiff has fabricated the book of account for the purpose of getting a decree in the suit. The learned Judge again reiterates the same view when he says that Ext. P.1 has been filed along with the institution of the suit, and it is not probable that the plaintiff has cooked up the account books to recoup his loss in the Amusement Park business. The learned Judge is also of the view that the suggestion of the defendant that the Kurippu accounts were written after the nalvazhi was written up, cannot also be accepted. Having made these observations regarding the genuineness and truth of Ext. P.1, the learned Judge then poses for consideration the question as to whether the accounts of the plaintiff in the name of the defendant from August 1955, even if they are written in the regular course of business, can be acted upon.

I am not able to understand and appreciate this line of reasoning of the learned Judge. That the defendant had dealings with the plaintiff till the end of April 1955 is accepted. If that is so, it follows, that part of the entries in the account book Ext. D6 which was produced by the plaintiff at the instance of the defendant and covering the period 29-3-1955 to 30-4-955, is accepted as true by the defendant himself. Then coming to the months of May to September, it is seen that in the month of May there is only a very small entry of Rs. 15/- and another small entry of Rs. 25/- in June, and the other entry of Rs. 15/- comes only in September. There is no transaction taking place between the parties in July and August. Then comes the material period from 21-1-955. Even if the reasoning of the learned Judge that the plaintiff has not satisfactorily established the dealings between the parties between 1-5-1955 and 21-1-955 is accepted as correct, the result will only be that the plaintiff cannot have a decree for a sum of Rs. 55/-or 60/-. That will be the position that can be put at the most against the plaintiff. But unfortunately the learned Judge goes further than that and attempts to discredit the various entries in the books of account. That the defendant was approaching the plaintiff with requests for loan, is again evidenced by Exts.P.6 and P.7. Ext.P.6 is dated 23-6-1955. In that the defendant requests the plaintiff for a loan of Rs. 25/-. That amount was given and it finds a place in the ledger and nalvazhi. So far as Ext. P.7 is concerned the trial court is of the view that it is not possible to fix up the exact date when it was written. But the learned Judge evidently ignore the circumstance that the defendant admits that he was in need of money and it is for that he wrote the letter Ext. P. 7 on 26-3-1955 asking again for a loan from the plaintiff. Therefore it is clearly established from the evidence of the defendant himself that Exts. P.6 and P.7 were written after 1-5-1955 to the plaintiff making a request to the latter for advancing him some amounts. I am only referring to these aspects to indicate that the plea of the defendant that he had absolutely no transactions with the plaintiff after 1-5-1955 cannot certainly be accepted.

Then there is another letter, namely Ext. P.8 which is admitted by the defendant as having been written to the plaintiff. In that letter he makes a request to the plaintiff for advancing him some amount. But the point to be noted is that he categorically states that he has taken the Chavara Minerals contract as well as Gusthi business, obviously referring to the Happy World Amusement Park with which he disclaims any connection whatsoever. That the Gusthi business was started only in November 1955 is borne out by the evidence of the defendant himself. Therefore P.8 must have been written only either during November 1955 or between November and December 1955. I may also indicate that 1 am not prepared to accept the extreme case set up by the plaintiff that he had nothing to do with the Gusthi business. In my view that evidence has to be accepted with caution because Ext. D 14, which is the receipt issued by the Quilon Municipal Council evidencing a deposit of Rs. 874-12-6 on 9-12-1955 in connection with this Happy World Amusement Park, is issued in the name of the plaintiff himself. Therefore the plea of the plaintiff that he has nothing to do with the Gusthi business is absolutely false.

But the larger question is as to whether the plaintiff should fail in toto in respect of the claim made by him, in view of some of these infirmities in his evidence. No doubt the plaintiff has stated that even the account books from 1-1-1955 was written by another clerk Gopala Pillai. But P.W. 2 who entered service of the plaintiff admittedly in July 1955 has categorically admitted that it was he who wrote the books of account from 1-1-1955 after he joined service. I have already indicated that that was not a circumstance taken into account by the learned Judge for discrediting the books of account of plaintiff. But on the other hand, the view of the learned Judge is that the question whether the accounts till the end of July were written afresh or not is not material because the defendant himself admits that he had had transactions with the plaintiff till the end of April 1955. There is some discrepancy between the version given by the plaintiff and that given by his clerk P.W. 2 as to when exactly the particular accounts were written, or as to who exactly that wrote some of the entries in them. But ultimately P.W. 2 whose evidence has been accepted even by the lower court, in part at any rate, has clearly stated that the entries in the books of account from 1-1-1955 to 29-11-1955 and up to 30-12-1955 are in his handwriting. If that is so, it will be seen that the entries in the books of account Exts. D 7, D6 and P. 1, and also in the nalvazhi Exts. P.9 and P.10 will stand established by the evidence of P. W. 2. No doubt P. W. 2 is not able to speak to every individual transaction that finds a place in the books of account. P.W. 1 no doubt says that on several occasions he was not visiting the shop. But when once the court itself has come to the conclusion that these books of account cannot be considered to have been manufactured or created or fabricated for the purpose of the present suit and they must be considered to have been written up in the regular course of business, the question is whether the learned Judge has acted rightly when he declined to place any reliance on those books of account.

No doubt 1 am aware of the fact that from the mere production of the account books before the court and saying that those account books relate to the transactions purported to have been entered into between the plaintiff and the defendant who is disputing the claim of the plaintiff, will not certainly amount to proof of the various transactions referred to in the books of account. But in this case the position is certainly not as indicated above. The plaintiff, as P.W. 1 and his clerk as P.W. 2 have given evidence in respect of those entries. In fact P.W. 2 has spoken in considerable detail to the individual transactions relating to Exts. D6 and P. 1 which relate to the period 30-3-1955 to 21-11-1955 and 21-11-1955 to 31-12-1955. Those books 1 have already indicated have not been disregarded or discarded by the learned Subordinate Judge. The transactions between the parties till May and September seem to be far and few between. But later on the transactions are very frequent and they are all borne out by the entries in Ext. D6 and Ext. P. 1. No doubt the plaintiff at one stage has stated that the amount of Rs. 874-12-6 covered by Ext. D14 was deposited by him on behalf of the defendant and that it does not find a place in the books of account. But ultimately it is seen that that also has been taken into account in the debit on 8-12-1955 which finds a place in the books of account. But the plaintiff also is not speaking to the complete truth and the defendant seems to be making a total repudiation of his liability in respect of the suit transactions. But the evidence of the plaintiff is corroborated by documentary evidence, and to that extent the plaintiff is situated in a better position than the defendant himself.

I am not inclined to accept the contention of the learned counsel for the respondent that in any event a decree can be given as against the defendant only in respect of the transactions covered by Ext. P. 1. Even if that contention is accepted it will follow that the transactions under Ext. P. 1 are fairly substantial and they take in a major portion of the plaint claim. Once the books of account are accepted and the fact that the defendant must have had the transactions with the plaintiff even after 1-5-1955 is also accepted, in my view, the decree of the learned Subordinate Judge dismissing the plaintiff''s claim in other respects cannot be allowed to stand. In the result, in modification of and over and above the decree passed by the learned Subordinate Judge in favour of the appellant plaintiff, the plaintiff is given a decree for the entire amount as claimed in the plaint. The appeal is allowed, and the appellant will get his costs from the defendant both in this court as well as in the court below. But the plaintiff appellant will have a decree for interest only at 6% on the amount claimed by him from 31-12-1955 on the., principal of Rs. 4888-12-0 till date of suit, and thereafter at the same rate.