TMI Blog2013 (1) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... th a spacious plea in his evidence which was not pleaded. Thus, no hesitation in holding that the High Court has fallen 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 is absolutely misconceived in the facts of the case. It is obligatory on the part of the defendant to specifically deal with each allegation in the plaint and when the defendant denies any such fact, he must not do so evasively but answer the point of substance. It is clearly postulated therein that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiffs but he must be specific with each allegation of fact as decided in Badat and Co., Bombay v. East India Trading Co. [1963 (5) TMI 45 - SUPREME COURT) Variance in the pleadings in the plaint and the evidence adduced by the plaintiffs - aspect impressed by High Court - Held that:- There is one variation, i.e., at one time, it is mentioned as Rs.6,64,670 whereas in the pleading, it has been stated as Rs.6,24,670 and there is some difference with regard to the date. In our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the partner of the said partnership firm. The plaintiff firm advances money to the agriculturists and charges commission on the sale price of the agricultural produce sold as determined by the market committee. For the aforesaid purpose, it has been maintaining the books of accounts in the regular course of business. The respondent- defendant (hereinafter referred to as the defendant ) had been maintaining regular and long standing current account with the plaintiffs. The defendant had taken advance from time to time from the plaintiffs which he had promised to return at the shop of the plaintiffs. All the transactions between the parties were entered in the books of accounts which reflected that as on 30.4.2002, a sum of Rs.5,80,000/- stood in the name of the defendant towards outstanding balance and he had acknowledged the same under his signature in the corresponding account entry in the account books of the plaintiffs. The defendant neither returned the money nor brought any agricultural produce for sale to the shop of the plaintiffs till 27.5.2003. The plaintiffs served a legal notice on 26.2.2004 on the defendant to make good the payment and also made repeated requests req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DW-1 and did not produce any documentary evidence. 7. The learned trial Judge, considering the evidence on record, came to hold that the plaintiffs had been able to establish that the firm was engaged in the business of a commission agent which lends money to the agriculturists; that the business transaction with the plaintiff s firm had not been denied by the defendant; that the bahi entries had been produced on record by the plaintiffs to show that the amount was advanced to the defendant and the said entries had the stamp and signatures of the defendant; that the plea of the defendant that his signatures on the bahi entries were fraudulently obtained had not been substantiated; that the transactions in dispute were numerous and extended over a number of years and there was no reason not to lend credence to the genuineness of the books of accounts; that the plaintiffs had the locus standi to file the suit and the cause of action had arisen to initiate a civil action and that the plea that the suit was defective for non-joinder of parties had really not been pressed. Being of this view, the learned trial Judge opined that the plaintiffs were entitled to recover the amount of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cument/finger print expert was led by the plaintiffs to establish the signatures of the defendant in the account books; (iii) whether it was obligatory on the part of the plaintiff to prove the alleged signatures of the defendant in the cash book when they had been disputed; and (iv) whether the admission of the defendant could be assumed in the absence of clear and unambiguous admission of the party to the litigation. 12. The High Court referred to paragraphs 6 and 7 of the plaint and Exhibits P-1, P-2, P-3, P-7, P-9 and P-10 and noticed the variance of the amounts mentioned therein and further opined that when the signatures had been denied, the onus was on the plaintiffs to examine a handwriting expert to establish the veracity of the signatures to bring home the plea set up by the plaintiffs in the plaint. It also ruled that the courts below had fallen into error in holding that the onus to prove the falsity was on the defendant. Analyzing the documents and evidence, the learned single Judge came to hold that the averments as pleaded in the plaint and the evidence in support thereof were at variance with each other and the evidence did not substantiate the claim and the onu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his signatures were taken or not. 16. As noticed earlier, the High Court has held that the fora below erroneously placed the onus on the defendant to disprove his signatures. On a careful scrutiny of the evidence, it is manifest that the signatures are proven by the witnesses and they have been marked as exhibits without any objection. It is interesting to note that in paragraphs 6 and 7 of the plaint, it was averred that the defendant had given the acknowledgement of amount under his signature in the corresponding entry in the books of accounts. While replying to the same, the defendant has said that the arguments in para 6 of the plaint are wrong and denied in view of the preliminary objections. It is apt to note that the preliminary objections pertained to bald denial of liability, lack of locus standi to file the suit, non- joinder of parties and lack of cause of action. Thus, there was no plea whatsoever as regards the denial of signature or any kind of forgery or fraud. The High Court, as we find, has observed that the plaintiffs should have examined a handwriting expert. The plaintiffs had asserted that there was an acknowledgement under the signatures of the defendant. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence. 21. The present case is not one such case where the plaintiffs have chosen not to adduce any evidence. They have examined witnesses, proven 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 averments, had not stated anything else. That apart, nothing was put to the witnesses in the cross-examination when the documents were exhibited. He only came with a spacious plea in his evidence which was not pleaded. Thus, we have no hesitation in holding that the High Court has fallen 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 is absolutely misconceived in the facts of the case. 22. The said aspect can be looked from another angle. Rules 3, 4 and 5 of Order VIII form an integral code deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n paragraph 18 of the election petition have not been specifically denied or disputed in the written statement, the allegations made therein would be deemed to have been admitted, and, thus, no evidence contrary thereto or inconsistent therewith could have been permitted to be laid. 25. We may state with profit that in the said case, reliance was placed on Badat and Co. v. East India Trading Co. (supra). 26. Scrutinized thus, the irresistible conclusion would be that the defendants could not have been permitted to lead any 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, has overturned the said finding. 27. Another aspect which impressed the High Court was the variance in the pleadings in the plaint and the evidence adduced by the plaintiffs. To appreciate the said conclusion, we have keenly perused paragraphs 6 and 7 of the plaint and the evidence brought on record. It is noticeable that there is some variance but, as we perceive, we find that the variance is absolutely very little. In fact, there is one variation, i.e., at one time, it is menti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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