JUDGMENT
Shiv Dayal, J.
1. The appellant’s (sic) (respondent’s?) suit was based on a bond for Rs. 880/- (Ex. pl.) under which the defendant is purported to have obtained a lean of Rs. 880/- in cash. The defendant denied that any cash consideration passed. He also pleaded a repayment of Rs. 398A. The trial Judge dismissed the suit. The first appellate Court has found that no cash consideration passed from the plaintiff to the defendant on the date of the execution of the bond but on the defendant’s admission he found that a decree could be passed against him.
2. It is argued by Shri Gupta that there was no case in the plaint nor in the statement of the plaintiff or his witnesses that there was any previous account under which the defendant was liable to pay Rs. 880/-, the defendant’s admission should either have been taken into account as a whole or should have been ignored. But the lower Court has passed a decree on this basis without taking into consideration his objection that interest at a rate which was not allowable had been included and compound interest had also been charged. Learned counsel also argues that there was no admission as to the execution of the particular document which was the basis of the suit.
3. Having regard to paragraph 1 of the written statement, it is quite clear to me that the defendant admits to have executed a certain document, but he does not say that he did not execute the particular document referred to in paragraph 1 of the plaint. In the absence of such denial, it will be deemed that he admitted execution of the suit bond. Once the execution of the document is admitted, it is for the defendant to prove want of consideration.
4. When, execution of a document is either admitted or proved, a natural presumption arises against the deb-for that he must have received consideration when he executed it. Here it must be clearly understood that the burden of proof is not stationary. The expression “burden of proof” Is used in 2 senses, i.e., the burden of proving an issue or issues sometimes termed the ‘legal burden’, and the burden of proof as a matter of adducing evidence during the various stages of the trial. What is called the burden of proof on the pleading should not be con-
fused with the burden of adducing evidence which is described as “shifting”. See, observations in Narayan v. Gopal, AIR 1960 SC 100; Pickup v. Thames insurance Co., (1878) 3 QBD 594; Lakshmana v. Venkateswarlu, 76 Ind App 202 : (AIR 1949 PC 278); 15 Halsbury (Simond) 267; Huyton-with-Roby Urban District Council v. Hunter, (1955) 2 All E. R. 398 at p. 400 per Denning L. J. Thase two aspects of the burden of proof are enunciated in sections 101 and 102 of the Evidence Act, Section 101 shows that the initial burden of proving a prima facie case in his favour is on the plaintiff. When he gives such evidence as will support a prima facie case, the onus shifts, on the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop, the onus may shift back again to the plaintiff.
5. In the case of a bond when execution and consideration are both denied by the defendant, the primary burden to prove execution as well as consideration is on the plaintiff. But once he proves that the signature or the thumb mark is of the defendant, the burden shifts to the latter. That burden the defendant can discharge either by establishing circumstances as would vitiate the contract, e. g. fraud, coercion, undue influence, mistake, want or failure of consideration or he can make out circumstances to show that no presumption fairly arises against him under section 114 of the Evidence Act. As soon as the defendant succeeds in this, then the burden shifts back to the plaintiff. The recital in the document that the defendant has received consideration is no doubt evidence against him but is not conclusive and the defendant can show that the recital is not correct. The defendant can discharge his burden either by himself producing evidence or from the evidence produced by the plaintiff.
6. In cases of this nature, it is the clear duty of the Court to analyse the evidence to find out (i) whether execution is proved; (ii) if it is, whether the defendant did not receive the consideration as purports to have passed according to the recital in the document; and (iii) in case the answer to the second question is in the negative, whether the plaintiff is entitled to any relief.
7. Whether the plaintiff has succeeded on the evidence or on the admitted facts in discharging his burden is a question of fact but the question whether the burden of proof shifts back to the plaintiff in the circumstances, is a matter of law. In the view that I am taking I respectfully think that I am supported by the observations of Mr. Justice Vivian Bose, in Udebhan v. Vithoba, AIR 1939 Nag 78.
8. Here, in the plaint as also in his deposition, the plaintiff stated that the amount of Rs. 880/- was advanced in cash. This has been disbelieved by the Courts below. Thus the consideration as appears on the face of the document’ is not proved. Adverting to the defendant’s admission in the written statement, he did not admit that a sum of Rs. 8807- or any other specified sum was due by him. Out of the questions posed above, the first must be answered in the affirmative, in favour of the plaintiff, but the second must also be answered in the affirmative, in the defendant’s favour. In the absence of pleading or proof that any other sum was really due to the plaintiff, no decree could be passed in favour of the plaintiff. There was no issue about any previous dealings. As framed by the trial Judge, issue No. 1 was whether Rs. 880/-were not paid at the time of the execution. Obviously this part of the issue has been decided against the plain tiff by both the Courts below. No issue was framed
whether Rs. 880/- were actually due by the defendant on some previous account If the suit is dismissed on these premises, it will not meet the ends of Justice because the defendant has admitted that there was a previous account and further pleaded a part payment. The demand of justice, therefore is that the plaintiff should be allowed a fresh opportunity. Courts do not exist just for discipline or to punish parties for their mistakes in the conduct, of their cases. The defendant must however be compensated in the present position of the matter. The plaintiff must pay all costs to the defendant so far incurred by him and, further, in case any decree is passed against him, the plaintiff shall not be entitled to interest from the date of the suit to this date.
9. I am constrained to observe that because of the ill-advised conduct of the plaintiff, real issues were not joined and that the tendency to get balances struck or accounts stated from the debtor in form of cash transaction must be discouraged because whenever truth is mixed with falsehood a confusion is bound to arise and there is always the risk of justice being denied or delayed.
10. As regards the issue regarding repayment of Rs. 398/-, the trial Judge held against the defendant. The first appellate Court refused to consider that question on the ground that no cross objections were filed by the defendant. This is ‘ clearly an error of law, being in direct conflict with the express provisions contained in Order 41, Rule 22, C. P. C. The defendant-respondent was entitled to support, in the first appellate Court, the decree passed by the trial Judge on any of the grounds decided against him. Cross objections are required to be filed when there is some decree passed by the trial Judge against the respondent.
11. The result is that this appeal is allowed, judgment and decree passed by the first appellate Court as also those passed by the trial Judge are set aside. The base shall now go back to the trial Judge for a fresh inquiry whether Rs. 880/- were due and payable by the defendant on previous account. In that connection the trial Judge shall also decide afresh the defendant’s plea of part repayment. In case any sum is found payable by the defendant, the plaintiff shall not be allowed interest on it from the date of the suit to this date. The plaintiff shall pay the defendant’s costs heretofore incurred.
