LexM/S. GIAN CHAND & BROTHERS AND ANOTHER versus RATTAN LAL @ RATTAN SINGH
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[2013) 3 S.C.R. 601 M/S. GIAN CHAND & BROTHERS AND ANOTHER v. RATTAN LAL @ RATTAN SINGH (Civil Appeal No.130 of 2013) JANUARY 8, 2013 [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.] A B Code of Civil Procedure, 1908 - Order VIII, rr. 3, 4 & 5 - Manner in which allegations of fact in the plaint should be traversed - Legal consequences fir-wing from its non- C compliance - Appellants filed suit for recovery of the money allegedly lent by it to the defendant-respondent - Appellants placed reliance upon the alleged signatures of the defendant- respondent on the cash book maintained by the appellants - Respondent denied having borrowed any sum from the D plaintiffs-appellants and further denied the alleged signatures on the cash book - Held: The burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it but there may be an exception thereto, - On facts, the plaintiff examined witnesses, proven E entries in the books of accounts and also proven the acknowledgements duly signed by the defendant - The defendant, on the contrary, except making a bald denial of the avermehts, did not state anything else - Nothing was put F to the witnesses in the cross-examination when the documents were exhibited - The defendant only came with a specious plea in his evidence which was not pleaded - In the circumstances, the High Court fell into error in holding that it was obligatory on the part of the plaintiffs to examine the handwriting expert to prove the signatures - The finding that the plaintiffs had failed to discharge the burden was absolutely G misconceived in the facts of the case - In the written statement, there was absolutely evasive denial - The defendants could not have been permitted to lead any 601 -H 602 SUPREME COURT REPORTS [2013] 3 S.C.R. A evidence when nothing was stated in the pleadings - The courts below had correctly rested the burden of proof on the defendant but the High Court, in an erroneous impression, overturned the said finding - Evidence - Onus to prove - Evasive denial by defendant - Effect. B Evidence - Variance in the pleadings in the plaint and the evidence adduced by the plaintiffs - Effect - Held: On facts, the variance was absolutely very little - It did not remotely cause prejudice to the defendant - In all C circumstances, it cannot be said that because of variance between pleading and proof, the rule of secundum al/egata et probata would be strictly applicable. Evidence - Books of accounts maintained in regular course of business - Held: Should not be rejected without any D kind of rebuttal or discarded without any reason. The appellants filed suit for recovery of the money allegedly lent by it to the defendant-respondent. The appellants placed reliance upon the alleged signatures of E the defendant-respondent on the cash book maintained by the appellants. The respondent denied having borrowed any sum from the plaintiffs-appellants and further denied the alleged signatures on the cash book. The suit was decreed by the trial court. The decree was F partially modified by the first appellate court. On further appeal by the defendant, the High Court held that the findings returned by the courts below were perverse on two counts, namely, incorrect placing of onus on the defendant to prove that the signatures had G been forged more so when there was denial of the same and second, the variance in the pleadings and the evidence as regards the amounts in question were not appositely taken note of, and accordingly set aside the judgments of the courts below. Hence the present appeal. H • GIAN CHAND & BROTHERS v. RATTAN LAL @ 603 RATTAN SINGH Allowing the appeal, the Court A HELD: 1.1. The plaintiffs have categorically asseverated that the defendant used to avail advance money from the plaintiffs with the promise to bring his agriculture produce for sale at their shop and the said 8 amount had been duly entered in the books of accounts which the defendant had acknowledged under his signatures in the corresponding entries. The Accountant of the firm, PW-1, has proved various entries and they have been marked as exhibits. There had been no objection when the signatures were stated to be that of C the defendant. Also, nothing has been put to him in the cross-examination about. the signatures. The partner of the firm, PW-2, has testified the signatures in the
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