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Judgment
S.S. Dewan, J.—This is second appeal filed by the defendant M/s. Kulu Transport Co-operative Society Ltd, Kulu, against the judgment dated August 13, 1976 of the Additional District Judge, Gurdaspur, accepting the appeal filed by the plaintiff-firm M/s. Arora Traders and setting aside the decree of the trial Court.
The material facts of the case are within a short compass and may be briefly set out:--
The plaintiff-respondent brought a suit for the recovery of Rs. 9500/- against the defendant-appellant. It was pleaded that the appellant-Society had been purchasing goods from the respondent-firm at Pathankot on various occassions vide bills, attached with the plaint and that after making adjustments of payments received from the appellant, the amount of Rs. 9475/- remained due to the respondent. The appellant issued a cheque for Rs. 2750/- drawn on Punjab National Bank, Kulu, but the said cheque was dishonoured. It was further alleged that notices as required under the Cooperative Societies, Act, were served on the appellant as well as on the Registrar, Cooperative Societies, Himachal Pradesh, Simla and in reply to the notice, the appellant made reference to the cheque for Rs. 2750/-, but did not pay any amount to the respondent. It denied the allegations of the respondent. It was averred in the written statement that whatever goods were purchased by the appellant from the respondent were paid for and nothing remained due from the appellant. The appellant challenged the jurisdiction of the Civil Court at Pathankot to try the suit and also challenged the validity of notice issued by the respondent under the Cooperative Societies Act. The pleadings of the parties gave rise to the following issues:--
What amount is due to the plaintiff ?
Whether notice under Co-operative Societies Act was legally served on the defendant ?
Whether this Court has territorial jurisdiction to try this suit?
Whether plaintiff is entitled to interest. If so, at what rate and to what amount ?
Relief.
The Subordinate Judge, 1st Class, Pathankot, decided issues Nos. 1, 2 and 4 against the respondent firm and issue No. 3 in its favour As a result, the suit of the respondent was dismissed with no order as to costs. Feeling aggrieved, the respondent tiled an appeal in the Court of District Judge, Gurdaspur. Before the Additional District Judge, the decision on issue Nos. 1 and 2 was contested. The Additional District Judge reversed the findings of the trial Court on these issues. As a result, the appeal was accepted and the decree of Rs. 9475/- was passed in favour of the respondent with costs. The appellant Society then filed this second appeal in the High Court.
The learned counsel for the appellant has made a faint hearted attempt to assail the finding of the lower appellate Court on issue No. 1. It is contended that the lower appellate Court had erred in law in upsetting the finding on issue No. 1 ; that it was incumbent upon the respondent to prove that the goods had been purchased by the appellant ; that the Court below has observed in its judgment, "that according to the plaintiff, goods were purchased by the defendant through Mr. Puri and it is also correct that the plaintiff has failed to prove that Mr. Puri was authorised by the defendant to purchase goods on their behalf." It is urged that on this ground, the Court below should have dismissed the respondent''s suit. The contentions of the learned counsel, though appear to be pernicious do not, on consideration of the matter, hold water.
In Deity Pattabhilamaswamy v. S. Hanymeyya AIR 1959 S.C. 57, it was held as under:--
The provisions of Section 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact. A judge of the High Court has therefore, no jurisdiction to interefere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence.
In Paras Nath Thakur v. Smt. Mohani Dasi AIR 1959 S.C. 1204, it was held that a High Court on second appeal cannot go into questions of fact, however erroneous the findings of fact recorded by the Courts of fact may be.
Similar was the law laid down in Shri Raja Durga Singh of Solan v. Tholu and others AIR 1963 S.C. 351, and R. Ramachandran Ayyar Vs. Ramalingam Chettiar, . It was further held in AIR 1963 Supreme Court 302, as under:--
If a finding of fact has been recorded by the first appellate Court without any evidence, that finding can be successfully challenged in second appeal, because a finding of fact which is not supported by any evidence can be questioned u/s 100, and in that connection, it may be said that the decree proceeding on such a finding discloses a substantial defect or error in procedure. This, however, does not mean that wherever the High Court thinks that the evidence accepted by the lower appellate Court could not have been reasonably accepted, the High Court would be justified in interfering with the decision of the lower appellate Court. All that it means is that it should be a case where the evidence, which is accepted by the lower appellate Court, no reasonable person could have accepted and that really amounts to saying that there is no evidence at all.
Held, that the High Court was not justified in interfering with the finding of fact recorded by the lower appellate Court merely because the judgment of the lower appellate Court was not as elaborate as that of the trial Judge, or because some of the reasons given by the trial Judge had not been expressly reversed by the lower appellate Court. The finding of the lower appellate Court could not be said to be perverse or not supported by any evidence.
The law laid down in these authorities fully applies to this case. In the instant case, the points of dispute between the parties are whether there were dealings between the parties and whether the appellant was liable to pay the amount of Rs. 9500/- due to the respondent? The learned lower appellate Court fully discussed in detail the oral and document try evidence produced by the parties and came to the conclusion that the account books of the respondent which were regularly maintained indue course of business and copies of which had been placed on the rile supported by bills, Exhibit P. 4 to F. 48 and also supported by the partners of the respondent, were sufficient to fix the liability of the appellant and hence sufficiently proved that an amount of Rs. 9500/- was due to the respondent from the appellant on account of the balance price of the goods.
In order to prove that the appellant had dealings with the respondent, the latter examined its Munim Jai Dev (P.W. 1) who proved the copies of the ledger book, Exhibits P. 1 to P. 3. He has deposed that the account books of the firm were regularly maintained by him. Harbans Lal (P.W. 2) and Surinder Kumar (P.W. 3) are the partners of the respondent. They have approved the copies of the bills, Exhibits P. 4 to P. 48. These withesses have further proved the entries of these bills in the books of account maintained by the respondent. The appellant in its written statement has not denied having purchased any goods from the respondent, but admitted the fact that there were some dealings between the parties It is common ground that a cheque for Rs. 2750/- was issued to the respondent by the appellant, but the same was not on cashed in reply to the notice issued by the respondent, the appeal land did not deny having purchased any goods from the respondent ; rather he requested the respondent to supply the details of the account It is thus established that the appellant had dealings with the respondent. The respondent has made a statement on oath in support of the entires in the account, books, which is sufficient to fix the appellant with the liability. In case Suraj Parshad v. Mst. Makhna Devi AIR 1946 All. 27, it has been held that no doubt entries in the account books maintained by a creditor are not lay themselves evidence to attach a liability to the debtor but they can be used to corroborate the evidence given by the creditor that the payments had been made and a decree can be passed on the basis of such corroborated evidence. Similar view was taken in Kaka Ram Sohanlal and Others Vs. Firm Thakar Das Mathra Das and Others,
Keeping in view the proposition of law laid down in the aforesaid authorities, it can safely be assumed that there were dealings between the parties as is proved on the record and the account books of the respondent placed on the file are sufficient to fix the liability of the appellant. The respondent has no doubt pleaded that the goods were purchased by the appellant through Shri Puri and the learned lower appellate Court has observed in the judgment that the respondent has failed to prove that Shri Puri was authorised by the appellant to purchase goods on its behalf much capital cannot be made out of this circumstance. The appellant has admitted having purchased some goods from the respondent. In such a situation if Mr. Puri was not the authorised agent to the respondent, it was for the appellant to have produced some evidence in rebuttal to show that it had never authorised Mr. Puri to purchase goods from the respondent and whatever goods the appellant purchased from the respondent, it purchased through some other representative. The appellant did not bother to adduce any such evidence. Narinder Dass Sud, attorney of the appellant, has stated that the appellant maintained regular account books. The appellant withheld its account books and rather adopted a queer attitude during the evidence that there ware no dealings between the parties. The appellant could have produced its best evidence to rebut the contention of the respondent in order to prove that it did not purchase goods through Mr. Puri. In these circumstances it can safely be presumed that had the account books of the appellant been produced, the same would not have supported its case. In these circumstances the account books of the respondent cannot be ignored on the ground that it failed to prove the authority of Mr. Puri to purchase the goods. The decision of the lower appellate Court is based on evidence. The High Court cannot interfere with the conclusions of fact recorded by the lower appellate Court howsoever erroneous the said conclusion may appear to the High Court. However, in the instant case, the conclusions arrived at by the lower appellate Court are correct and are based on documentary evidence. The High Court cannot re-appraise the fin ding as it is a second appeal. Mo other point has been urged by the appellant which requires determination.
For the above reasons, it is held that there is no substance in the appeal and the same is dismissed. However, there will be no order as to costs.