ORDER
C.Y. Somayajulu, J.
1. Respondent filed the suit for recovery of rent from July 1997 to February 1998 at the rate of Rs. 400/- per month from the revision petitioner, with interest at 24% per annum. Revision petitioner filed his written statement inter alia contending that when his father took the building on lease in 1968 on a monthly rent of Rs. 300/- he gave a deposit of Rs. 1,500/-, to be returned with interest at 12% p.a. at the time of vacation of the building, and the arrears of rent, if any, for a period of two months would carry interest at 12% per annum and that the rent was later enhanced to Rs. 400/- per month and that he paid the rent at Rs. 400/- p.m. till December 1997, and that the respondent did not issue receipts for that amount. When he asked for issuance of a receipt, respondent sought enhancement of rent to Rs. 1,500/- p.m. and admitted receipt of rent till December 1997 before the mediators. Since he refused to enhance the rent to Rs. 1,500/- p.m. before the mediators, he got issued a registered notice to the revision petitioner to name a bank to deposit the future rents and remitted the rent for the month of January 1998 by Money Order, which was evaded to be received by the respondent and so he filed a petition seeking permission to deposit the rents into Court and is depositing the rents regularly into Court before the Rent Controller and so the respondent filed a petition seeking his eviction from the demised premises on the ground of wilful default. Since he paid away the rent from July 1997 to December 1997 and since the rent from January to December 1998 was deposited in R.C.C. No. 5 of 1998 filed by him, respondent is not entitled to claim the amount that too with interest at the rate of 24% per annum.
2. In support of his case, respondent examined himself as P.W. I and marked Exs. A1 and A2 on his behalf. Revision petitioner examined his brother as D.W. 1 and another witness as D.W. 2 and marked Exs. B1 to B11 on his behalf. The trial Court after considering the rival contentions dismissed the suit. Questioning the same respondent preferred C.R.P. No. 1218 of 2001 to this Court. A learned Single Judge of this Court, by his order dated 12-12-2001 vide Grandhi Padmanabham v. Rajesh Gothi , allowed the C.R.P. and remanded the case to trial Court for fresh disposal, by giving an opportunity to the parties to establish their respective contentions.
3. After remand, the respondent examined one more witness as P.W. 2 and marked Exs. A3 to A5 on his behalf. In support of his case, the revision petitioner examined himself as D.W. 3 and marked Exs. B12 to B15. The trial Court, by the order under revision, decreed the suit for Rs. 2,632/-. Hence this revision by the defendant in the suit.
4. The main contention of Sri Vijay on behalf of the revision petitioner is that since the suit was remitted to the trial Court by making a specific observation that the evidence adduced by both the parties does not prove their respective contentions and since the point for consideration framed by the trial Court is not correct and since the respondent did not adduce evidence which is relevant for deciding the dispute in the suit, the trial Court was in error in decreeing the suit. It is his contention that the trial Court which rightly drew an inference against the respondent for non-production of the account books and income tax returns earlier overlooked the said fact in the judgment under revision, and had not properly appreciated the contentions raised by the revision petitioner and was in error in drawing an inference against the revision petitioner for his showing Rs. 3,600/- only as the rent paid by him in Ex. B 10 income tax return. It is his contention that since revision petitioner paid rent only upto December 1997 to the respondent, and deposited the subsequent rent from January 1998 to March 1998 into the Rent Control Court subsequent to 1-4-1998 in R.C.C. No. 5/98 that amount of Rs. 3,600/- shown in Ex. B 10 represents the actual rent paid for the account year 1997-98. It is his contention that the Court should have drawn an adverse inference against the respondent because he, as P.W. I, having admitted that his account books disclose the non-payment of rents for the relevant period failed to produce his account books into Court. The contention of Sri T.S. Anand, the learned Counsel for the respondent, is that since the trial Court gave cogent reasons for its conclusion, and since the burden of proof to establish that the rent for the relevant period was paid is on the revision petitioner, non-production of account books by the respondent is not of any consequence. It is his contention that since the revision petitioner did not produce his day books (Chittas) for the relevant period, but had only produced the ledger, in which the entries in the day book (Chittas) would be posted, it is but a secondary evidence and so it cannot be taken into consideration for deciding the point for consideration.
5. Since the suit is for recovery of arrears of rent, and since the contention of the revision petitioner/tenant is that he paid away the rent, for the period in dispute, he has to establish that he paid away the rent for the disputed period to the respondent and so the point for consideration in this revision is:
Whether the revision petitioner paid away the rent from July 1997 to February 1998 to the respondent?
6. That the revision petitioner tenanted building is governed by the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (the Act) is an admitted fact. Revision petitioner admittedly filed R.C.C. No. 5 of 1998 under Section 8 of the Act seeking permission to deposit rents before the Rent Controller. Since the earlier part of Section 8 of the Act reads:
Every tenant who makes a payment on account of rent or advance shall be entitled to obtain receipt for the amount paid by him signed by the landlord or his authorized agent.
It is clear that obtaining of receipt for the rent paid by him to the landlord is a right conferred on the tenant by the Act. So if the tenant fails to obtain receipts for the amounts paid by him, he has to suffer the consequences for his default. He cannot, in the teeth of the first part of Section 8 of the Act, be heard to say that there is no practice of obtaining receipts from the landlord, since a practice, which is contrary to the provisions of a statute would not be recognized or approved by Courts of law. That apart the contention of the revision petitioner that respondent was not in the habit of issuing receipts stands belied by his admission in Ex. B 2 registered notice got issued by him to the respondent, which was returned unserved on the ground of non-availability of the respondent for a continuous period of seven days, where it is admitted that the respondent used to pass receipts till June 1997, and ‘failed to pass receipts from July to December 1997’. Since revision petitioner, admittedly, obtained receipts till June 1997, if he paid rent for the period subsequent to July 1997 he should have insisted on the respondent issuing a receipt for the rent paid by him and if he refused to pass a receipt he should have sent it by Money Order or other mode, to have proof of his paying the rent. When he failed to do so he has to suffer the consequences therefor.
7. Revision petitioner in support of his contention that he paid rent from July to December 1997 to the respondent tried to draw support from the entries in Ex. B 7, ledger for the year 1997-98. Day book for 1997-98 is not produced by the revision petitioner. It is well-known that entries in the ledger would be made from the entries in the day book. So mere production of the ledger, without day book would not suffice. Law requires proof not only of account books generally, but proof of each of the entries therein also. Proof of entries in account books were considered by Sreeramulu, J., in Vijayalakshmi Tobacco Co. v. Kurmineni Koteswara Rao 1970-71 Lawyers Reference 2 (SN) : CRP No. 354 of 1970 dated 25-9-1970, where it was held:
To show that the account books are kept under the regular course of business one has to prove that the balances are struck at the end of each day or at some regular intervals. The entries are first made in the day book. From there they are carried on to the Khata or ledger. Unless the writer of the accounts comes in the witness box and proves that the entries in the account books were written by him at the time when the business transactions took place and that the khata was based upon those entries in the day book and the books were written from day to day, it cannot be said that the person maintaining the account books has proved the accounts. If for any reason the writer of the accounts is not able to prove the entries in the account books some other person who is connected with the firm and who knows the writing of the accountant can prove the entries in the account books, saying that to his knowledge accounts or entries in the account books are made by his accountant. There is however no presumption attached to entries in account books.
The law requires proof not only of account books generally but each of the items or entries have to proved.
Since the person who wrote the entries in Ex. B 7 is not examined and since the day book for 1997-98 also is not produced, Ex. B 7 cannot be taken into consideration for deciding the point for consideration more so because as per Section 34 of Evidence Act entries in books of account maintained in the regular course of business are only relevant, but are not conclusive proof. So proof of the entries in the accounts is also essential for the Court to act upon the entries. In V. Seetharamaiah v. Sri Rama Motor Finance Corporation, Kakinada , also it is held:
An entry in the ledger account of the plaintiff that a certain sum was paid by the plaintiff to the defendant when not supported by any receipt of payment or voucher is not by itself sufficient to establish that the sum was paid by the plaintiff to the defendant.
8. Ex. A 10 is the return of income tax filed by the revision petitioner for the accounting year 1997-98 in which he has shown that he had paid Rs. 3,600/- (wrongly noted as Rs. 3,680/- in the judgment of the trial Court) as rent. In my considered opinion, Ex. A 10 cannot be taken into consideration for deciding this case because it came into existence after filing of the suit. The suit was instituted on 28-3-1998 and the return of the income tax for the accounting year 1997-98 would have been filed only after 1-4-1998 if not in June 1998. There, admittedly, are disputes regarding payment of rents from July 1997 between the revision petitioner and the respondent. Even according to the revision petitioner he issued Ex. B 2 notice on 23-2-1998 and initiated proceedings under Section 8 of the Act on 12-3-1998 seeking permission to deposit the rent into Court, as disclosed in the written statement of the revision petitioner. So, the possibility of the revision petitioner creating Ex. B 2 in support of his contention cannot be ruled out. Therefore, Ex. B 2 is not of help to the revision petitioner to establish his contention.
9. Ex. B 1 is produced to show that rent sent by Money Order was refused by the respondent. Ex. B 1 is the bottom most portion on a Money Order sheet. Court can take judicial notice of the fact that if not now, by 1998, a Money Order form used to be in three portions. The bottom most portion thereof, which does not contain any space for postal seal is for the use of the sender for writing his messages etc. That bottom portion would be given to the payee of the Money Order. The middle portion thereof, containing the postal seal and acknowledgement of the payee, would be given to the sender of the Money Order. The top portion would be retained with the postal authorities. If a Money Order is returned to the sender due to its refusal or due to the non-availability of the payee, the sender would be given both the middle portion and bottom portions of the Money Order, but nor merely the bottom most portion. Revision petitioner did not produce into Court the receipt issued by the Postal Department in token of their receiving money from him for being delivered to the respondent. Had the revision petitioner produced the postal receipt along with Ex. B 1, at least the Court can presume that he had in fact sent the money mentioned therein to the addressee. Since Ex. B 1 does not contain the postal seal and since postal receipt evidencing money being sent by Money Order is not produced and since a document like Ex. B 1 can be brought into existence at any time, it (Ex. B 1) cannot be taken into consideration for deciding this case.
10. Ex. B 3, a ledger extract for the period 1/98 to 12/98 and Ex. B 4 ledger for 1992-93, Ex. B 5 the entry at page No. 25 of Ex. B 4 and Ex. B 6 entry at page 85 of Ex. B 4, Ex. B 11 income tax return dated 29-10-1999 relating to the assessment year 1999-2000 (accounting year 1998-99 i.e., from 1-4-1998 to 31-3-1999), Ex. B 12 ledger for the year 1993-94, Ex. B 13 entry in Ex. B 12, Ex. B 14 income tax assessment order for the assessment year 1999-2000 (i.e. the accounting year 1998-99) are irrelevant for deciding the point for consideration, because, they do not relate to the disputed period July 1997 to February 1998. Thus the documentary evidence adduced by the revision petitioner does not disclose that rents for the relevant period were paid to the respondent.
11. D.W. 1, the brother of the revision petitioner, who was examined prior to remand, stated that he paid the rents to the respondent. Since the written statement of the revision petitioner does not disclose that rents were paid through D.W. 1, the trial Court disbelieved his evidence. D.W. 2 is a mediator who is said to have been present when the respondent admitted receipt of rents from July 1997 to December 1997. His evidence is that the dispute was raised in the shop of the revision petitioner. During cross-examination, he stated that there is no document evidencing the settlement of dispute. He denied the suggestion that no dispute was raised and there is no demand for enhancement of rent by the respondent. The evidence of D.W. 2 cannot be believed because respondent, if he wanted to raise a dispute through elders, would not have gone to the shop or residence of the revision petitioner. He would have called the revision petitioner before the mediators either to the house of any mediator in whom both parties repose confidence or would have called the revision petitioner to his house. In fact there was no need for the respondent to raise a dispute before mediators. The need if any was for the revision petitioner. So it is for the revision petitioner to go to the respondent. For that reason and since there is no document to show that either the revision petitioner or the respondent sought a mediation, and since revision petitioner can bring any friend of his, and make him to say that there was a mediation. I do not wish to place any reliance on the evidence of D.W. 2.
13. D.W. 3, who was examined after remand, is the revision petitioner. Naturally he will speak in support of his case. So the oral evidence adduced by the revision petitioner also is not of much of help in deciding the point for consideration.
13. The contention that inasmuch as the respondent failed to produce his books of account and his income tax returns, an adverse inference has to be drawn against him, cannot be accepted, because respondent produced Ex. A 4 account book for the year 1997-98, Ex. A 3 certificate issued by the Chartered Accountant of the respondent shows that the respondent was not liable to pay income tax for the assessment year 1998-99, (accounting year 1997-98) in view of rebate under Section 88(b) of the Income Tax Act. If the revision petitioner felt that the respondent is suppressing his income tax assessment orders, he could have taken steps either for summoning them or could have obtained certified copies of the returns of income and the income tax assessment orders of the respondent, from the Income Tax Officer concerned. Having failed to do so, revision petitioner, on whom the burden of proof lay to show that he paid the rent for the period in dispute, having failed to produce his day book for 1997-98, cannot find fault with the respondent for not producing his income tax returns.
14. The other contention relates to the alleged failure of the trial Court to keep in view the observations made in the order of remand. When the case is remanded to the trial Court, for fresh disposal, the trial Court can appraise the evidence on record afresh and can come to a conclusion whether the evidence on record establishes the contentions raised by the parties or not. The view expressed in an order of remand in a revision petition under Section 25 of the Provincial Small Causes Courts Act cannot be construed as a finding of this Court, resulting in tying down the hands of the trial Court from reappraising the evidence, that too when no positive direction is given to the trial Court to decide the case only on a particular point. The learned Judge while setting aside the judgment of the trial Court remitted the case to the trial Court ‘to enable the parties to further establish their respective contentions’. No point is foreclosed in the order of remand and the case was kept at large.
15. After the case was remanded both parties adduced evidence. The trial Court, by giving cogent reasons, held that the revision petitioner failed to establish that he paid the rents from July 1997 to February 1998 to the respondent. The trial Court held that inasmuch as respondent deposited the rent for January and February 1998 before the Rent Controller and since he failed to establish that he paid rent from July to December 1997 passed a decree for that amount with interest. For the above mentioned reasons, I find no grounds to interfere with the said finding.
16. For the above reasons I also hold that the revision petitioner failed to establish that he paid rents from July 1997 to February 1997. The point is answered.
17. In view of my finding on the point for consideration, the revision petition is dismissed with costs.