Holding

The appeal is dismissed as the plaintiff did not discharge the burden of proof to establish the claimed sum, and the trial court’s decree of Rs 35,096 with 6% interest stands.

Summary

The plaintiff, Hirji Jadva Varsani, entered into a subcontract with Pindoriya & Co. for constructing police quarters and later sued for Rs 5,06,029 including interest, alleging unpaid security deposit, outstanding bills and interest. The trial court, after hearing evidence, decreed only Rs 35,096 with 6% interest, finding the plaintiff had not produced sufficient documentary proof for the larger claim. On appeal, the respondent’s counsel was absent, so the matter was heard ex parte. The appellant argued the trial court erred by ignoring admissions in Exh.106 and the plaintiff’s witness testimony. The High Court examined the burden of proof under Sections 101 and 102 of the Indian Evidence Act and held that the plaintiff failed to provide corroborative documents, and the photocopied account (Exh.106) was not admissible as proof. Consequently, the Court dismissed the appeal, upholding the trial court’s limited decree.

Issues considered

Whether the plaintiff has discharged the burden of proof under Sections 101 and 102 of the Indian Evidence Act
Whether the documentary evidence, particularly Exh.106, is sufficient to establish the claimed amount
Whether interest at 30% per annum is payable on the claimed sum
Whether the plaintiff is entitled to the full claimed amount of Rs 5,06,029
Whether the trial court erred in awarding only Rs 35,096 with 6% interest

Legislation cited

Code of Civil Procedure, 1908s. 96
Indian Evidence Act, 1872s. 101, s. 102, s. 34

Subjects

burden of proofevidencecivil procedureinterestcontractsubcontractex partedocumentary evidenceCode of Civil ProcedureIndian Evidence Act

Judgment

C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

Reserved On : 24/06/2026
Pronounced On : 03/07/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/FIRST APPEAL NO. 1564 of 2006

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE J. C. DOSHI

==========================================================

Approved for Reporting Yes No

==========================================================
HIRJI JADVA VARSANI
Versus
PINDORIYA & CO.
==========================================================
Appearance:
MR ANKIT Y BACHANI(5424) for the Appellant
MS VIDHI J BHATT(6155) for the Respondent
==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI

CAV JUDGMENT

1. The present appeal filed u/s 96 of the Code of Civil
Procedure, 1908 (in short “the Code”) is directed against the
judgment and decree of the learned 7 th Additional Senior Civil
Judge, Kachchh @ Bhuj dated 15th March 2005 in Special
Civil Suit No. 27 of 1997, by which the learned trial court
partly decreed the plaintiff's suit directing the defendant to
pay Rs. 35,096/- with interest at 6% per annum from the date
of the suit till realization.

Page 1 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

2. For the sake of convenience and brevity, parties are
referred to as per their original status before the learned trial
Court.

3. Brief facts of the case are as under:-

3.1 The defendant, Pindoriya & Co. and Company Limited,
was granted a contract by the State Government to construct
police quarters at Mandvi, Kachchh. Upon receiving the work
order, the defendant executed a subcontract on 6th January
1992 with the plaintiff.

3.2 The plaintiff completed the construction of police staff
quarters at Mandvi under the said subcontract. Disputes
thereafter arose regarding the amounts payable to the
plaintiff, giving rise to the original suit.

3.3 In this factual background, the plaintiff filed a civil suit
for recovery of amount of Rs. 5,06,029/- inclusive of interest
at 30% per annum under multiple heads.

3.4 The defendant received security deposit of Rs. 2,85,000/-
from the plaintiff. Out of this, only Rs. 2,60,000/- was
returned, leaving Rs. 25,220 outstanding as principal. A
further sum of Rs. 92,788/- was claimed as outstanding
interest on the fixed deposit. Thus, the plaintiff stated a sub-
total of Rs. 1,18,008/- under this head to be outstanding from
the defendant.

Page 2 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

3.5 The plaintiff claimed that the outstanding security
amount payable by the defendant was Rs. 1,09,396. However,
the defendant paid back only Rs.1 lakh to the plaintiff. Thus,
Rs.9396/- remained outstanding from the defendant.

3.6 Running bill for the work done is amounted to
Rs.52,99,761.81 paisa. The defendant, as against said bill,
paid only Rs.51,89,794.81 paisa and hence, Rs.1,09,968/-
remained outstanding to be paid by the defendant to the
plaintiff. In addition thereto, the amount of interest of
Rs.42,400/- remained outstanding. In total, Rs.2,79,772/- was
claimed by the plaintiff to be outstanding. The plaintiff also
charged interest at 30% per annum from 1st April 1995 to 1st
April 1997. Hence, the plaintiff is entitled to Rs.5,06,029/-
from the defendant.

3.7 The defendant filed a written statement at Exhs. 27
denying all contentions raised by the plaintiff. The defendant
contended that there is no privity of contract between the
parties with respect to any rate of interest or agreement
regarding interest, and denied that any amount claimed by
the plaintiff remains outstanding. The defendant further
contended that the plaintiff was required to clear certain dues
referred to as 'sales tax' before any final settlement could be
made. Notwithstanding this, the defendant acknowledged that
Rs. 35,096/- was payable to the plaintiff from the security
deposit due since 1994, and expressed willingness to pay the
same with interest.

Page 3 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

3.8 The learned trial Court framed the issues and permitted
both the parties to lead evidence.

3.9 After considering the evidence on record, the learned
trial court partly decreed the suit and directed the defendant
to pay Rs. 35,096/- with interest at 6% per annum from the
date of the suit till realization.

3.10 Hence, present First Appeal by the plaintiff.

4. Heard learned advocate Mr. Ankit Bachani for the
plaintiff. The respondent is represented by learned Advocate
Ms. Vidhi Bhatt. Despite being granted sufficient opportunity,
Ms. Vidhi Bhatt did not appear on 1st April 2026. This Court
granted a final opportunity on that date, directing that no
further adjournment would be given. Today also, learned
advocate Ms. Vidhi Bhatt remained absent. Hence, the appeal
has accordingly been heard ex parte.

5. Learned Advocate Mr. Bachani submitted that the trial
court committed a gross error in granting only Rs. 35,096/-
with 6% interest per annum, when the plaintiff had proved
total outstanding dues of Rs. 2,96,029/-. He would further
submit that the learned trial court failed to appreciate the
deposition of the plaintiff's witness Dilubha Takhubha, who
has established that no outstanding sales tax dues remain
outstanding. He would further submit that the learned trial
court failed to consider Exhs. 106 and 107, produced during

Page 4 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

cross-examination of the defendant, which contain admissions
regarding outstanding amount between the parties. He would
further submit that the learned trial court erred in concluding
that the plaintiff had failed to bring the case within the four
corners of the plaint.

6. Upon above submissions, learned advocate Mr. Bachani
prays to allow the first appeal, modify impugned judgment
and the the reliefs as prayed in the original plaint be granted
with costs.

7. This Court has heard the learned Advocate Mr. Bachani
for the appellant. The respondent's advocate having remained
absent, the matter has been considered on the material
available on record.

8. Before the learned trial Court, the plaintiff entered into
the witness box at Exh.55; Mr. Dilubha has been examined as
PW 1 Exh.68. The plaintiff in addition to oral evidence
produced documentary evidence. Copy of sub contract is
produced at Exh.56;the documents of other contract at
Exhs.59 and 60 and copy of NOC at Exh.70. Oral evidence of
the defendant is at Exh.84 and during the cross-examination
of the defendant, Exhs.106 and 107 are produced on record.

9. The learned trial Court examined the aforesaid evidence
and framed following issues and answered them accordingly.

“(1) Whether the plaintiff proves his suit claim?
(2) Whether the plaintiff is entitled to recover the suit

Page 5 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

amount from the defendant ?
(3) Whether the plaintiff is entitled for interest ? If
yes, then of what rate ?
(4) What is found due ?
(5) What order and decree ?

(1) Partly affirmative, Partly Negative,
(2) Partly affirmative, Partly Negative
(3) In the negative.
(4) As per discussion & final order.
(5) As per final order.”

10. The core finding of the learned trial Court to decree to
the suit to the extent of Rs.35,096/- with 6% interest s para 28
to 31, which reads as under:-

“28. During the course of evidence the plaintiff has
given deposition on oath, wherein the plaintiff stated
about due amounts of deposits various bills and
interest at the rate of 30%. But during the entire chief
examination he is failed to give specific detail about
various transaction with defendant which was
required for proving his various claims. The plaintiff
also failed to produce books of accounts, bills or other
documents relating to transaction. Even after his
admission have in his cross-examination he has
already completed accounts. Further it is also
appeared that he is also failed to give perfect actual
figures about his actual amount of dues during his
deposition. In above all circumstances it is clear that
only deposition on oath of plaintiff is not enough to
prove the claims of plaintiff and further corroborative
evidence is required to prove his claims.

29. As per the plaint, the plaintiff has asked various
kinds of interest from the defendant but as per above

Page 6 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

discussion when the plaintiff is failed to prove his
claims during the course of evidence. Also the plaintiff
has not given the detail in respect of interest and
above all it is also clear that there is not a single
condition mentioned in the contract produced at
Exh.56 in respect of any kind of interest on any due
amount. In above all circumstances it is also clear that
the plaintiff is also failed to prove his claims regarding
the various interest on various due: amount and
therefore the plaintiff is also not entitled to get decree
in respect of interest as he claimed.

30.At this stage it is necessary to note about the
arguments of plaintiff-side on documents at xh.106.
According to the Learned Advocate for plaintiff that
Exh.106 is the complete account and it is admitted by
the defendant therefore it is reliable evidence, and as
per Exh.106 the plaintiff claims are proved, but I do
not agree with this arguments of Learned Advocate
for the plaintiff because during the course of cross-
examination the defendant do not specifically
admitted about the any due amount mentioned in Exh.
106. He also specifically do not admitted about any
claim or dues as mentioned in Exh.106 but during the
course of his deposition he accept only Rs. 35,096/-
He specifically denied all kinds of claims during his
examination in chief as well as in cross-examination.
Further looking to the form of Exh. 106; it is a xerox
copy and there is not mentioned any particular date of
its preparation to clarify the situation of any
particular date as well as it is also not signed by any
party. As discussed above it is clear that only Exh. 106
is not enough evidence for plaintiff to prove his
claims.

31. As discussed above when the plaintiff has not
produced any reliable and enough evidence for
proving his suit claims it is clear that except the
admitted due amount of Rs. 35,096/- the plaintiff is
failed to prove his various due amounts against the
defendant.

Page 7 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

11. Thus, upon above findings, the learned trial court found
that the plaintiff did not produce account books, bills, and
corroborative documents to prove the claims under each
head. This Court has examined the relevant exhbitis to
determine whether the appellant has discharged this burden.
Learned advocate Mr. Bachani in his arguments failed to point
out any of the evidence on record except Exh.106 to confirm
the stand that the plaintiff has produced enough evidence.

12. Before, I discuss evidence of Exh.106, let refer the
recent findings of this Court in regards to burden of proof on
the plaintiff to prove the claim u/s 101 and 102 of the
Evidence Act. This Court in case of District Collector and
another Vs. Iqbalhussain Ibrahim Shaikh, rendered in
First Appeal No.6729 of 1998, held in para 21 to 24 as
under:-

“21. Sections 101 and 102 of the Indian
Evidence Act, cast the burden upon the plaintiff to
prove the facts asserted by him. Sections 101 and
102 of The Indian Evidence Act, 1872, read as
under:
“101. Burden of proof. - Whoever desires
any Court to give judgment as to any legal
right or liability dependent on the existence
of facts which he asserts, must prove that
those facts exist.
When a person is bound to prove the
existence of any fact, it is said that the
burden of proof lies on that person.

Page 8 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

102. On whom burden of proof lies. - The
burden of proof in a suit or proceeding lies on
that person who would fail if no evidence at all
were given on either side.”

22. In the case of Rangammal Vs.
Kuppuswami, reported in AIR (2011) SC 2344, the
Hon’ble Supreme Court held that when a person is
bound to prove the existence of any fact, it is said
that burden of proof lies on that person. Thus, the
burden of proving fact always lies upon the person
who asserts it. Unless such burden is discharged,
the other party is not required to be called upon to
prove his case.

22.1 In the present case, the burden squarely
rested upon the plaintiff to positively establish that
he had suffered loss of the specific articles, furni-
ture, fixtures, sewing machines and other belong-
ings referred to in the impugned judgment, though
not specifically pleaded in the plaint. The plaintiff
was further required to establish the extent of the
economic loss allegedly suffered by him by leading
cogent and reliable evidence. Mere non-appear-
ance of the defendants in the witness box would
not, by itself, advance the case of the plaintiff or re-
lieve him of the burden of proving his claim.

23. In Rangammal (supra), the Hon'ble
Supreme Court, in paragraph Nos. 36 to 38, reiter-
ated the aforesaid principles and held as under:
“36. The onus was clearly on the plaintiff to
positively establish his case on the basis of
material available and could not have been
allowed by the High Court to rely on the
weakness or absence of defence of the de-
fendant/appellant herein to discharge such
onus. The courts below thus have illegally
and erroneously failed not to cast this bur-
den on the plaintiff/respondent No.1 by
clearly misconstruing the whole case and

Page 9 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

thus resulted into recording of findings
which are wholly perverse and even against
the admitted case of the parties.

37. It is further well-settled that a suit has
to be tried on the basis of the pleadings of
the contesting parties which is filed in the
suit before the trial court in the form of
plaint and written statement and the nu-
cleus of the case of the plaintiff and the con-
testing case of the defendant in the form of
issues emerges out of that. This basic prin-
ciple, seems to have been missed not only
by the trial court in this case but consis-
tently by the first appellate court which has
been compounded by the High Court.
38. Thus, we are of the view, that the whole
case out of which this appeal arises had
been practically made a mess by missing
the basic principle that the suit should be
decided on the basis of the pleading of the
contesting parties after which Section 101
of The Evidence Act would come into play in
order to determine on whom the burden
falls for proving the issues which have been
determined.

24. Elaborating upon the same proposition
of law, the Hon'ble Supreme Court in the case of
C.N. Ramappa Gowda v. C.C. Chandregowda
(Dead) by LRs & Anr. examined the scope and ef-
fect of Order VIII Rule Rule 10 and Order XII Rule
6 of the Code of Civil Procedure. The Court held
that mere failure of the defendant to file a written
statement does not automatically entitle the plain-
tiff to a decree, nor can the defendant be non-
suited solely on that ground. In such circum-
stances, the Court is required to adopt a cautious
approach and satisfy itself that the plaintiff has es-
tablished his claim on the basis of admissible and
reliable evidence. Paragraph 29 of the aforesaid
judgment reads as under:
“29.It is a well acknowledged legal dictum that
assertion is no proof and hence, the burden lay on the

Page 10 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

plaintiff to prove that the property had not been
partitioned in the past even if there was no written
statement to the contrary or any evidence of rebuttal.
The trial court in our view clearly adopted an erroneous
approach by inferring that merely because there was no
evidence of denial or rebuttal, the plaintiff’s case could
be held to have been proved. The trial court, therefore,
while accepting the plea of the plaintiff-appellant ought
to have recorded reasons even if it were based on ex-
parte evidence that the plaintiff had succeeded in
proving the jointness of the suit property on the basis of
which a decree of partition could be passed in his
favour. “

13. It is clear case that the plaintiff has miserably failed to
prove by leading cogent and convincing documentary
evidence which may entail that Rs.5,06,029/- is outstanding
amount against the defendant. The plaintiff having relied
upon deposition of PW 1 Dilubha at Exh.68 and Exh.70 being
NOC to submit that witness Dilubha is Junior Clerk in Geology
Department and further deposed that NOC has been issued to
the defendant on 23.11.1994 and produced said NOC at
Exh.70. In his deposition, witness Dilubha deposed that no
outstanding amount lies against the defendant. In cross-
examination, he has admitted that no final bill can be repaid
till NOC is produced before the concerned department. He
has further admitted that before issuance of NOC, the
department is checking different records. He has further
admitted that NOC is given for different work individually.

14. Learned advocate Mr. Bachani also relied upon cross-
examination of the defence witness and submitted that the
defendant has accepted in cross-examination that the
petitioner is entitled to the amount of deposit with interest.

Page 11 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

However, the learned trial Court has misread the evidence.
What could be noticeable on going through the cross-
examination of the defence witness at Exh.84 (Page 82 of the
paper book) that the plaintiff's own advocate put a suggestion
to the defendant's witness that Rs. 35,096/- remains
outstanding. This suggestion was admitted. A further
suggestion that the defendant is ready to pay Rs. 35,096/- was
also admitted. Such submission assumed significance on the
ground that learned advocate appearing for the plaintiff made
aforesaid suggestion to the defendant’s witness against whom
he is seeking recovery of the amount. The suggestion itself
makes it clear that the plaintiff is confining his relief to the
extent of recovery of Rs.35,096/- only. The defendant's
witness also stated in cross-examination that the entire
security deposit had been returned to the plaintiff.

15. As far as Exh.106 is concerned, it is the photocopy of
accounts maintaining on some plain paper. The defendant's
witness admitted that the handwriting on Exh.106 is that of
his son. However, the defendant did not admit the contents of
Exh. 106 as a true and correct account. A mere admission of
handwriting does not amount to an admission of the document
as a correct account. Further, Exh. 106 being a photocopy,
the plaintiff was required to direct the defendant to produce
the original and to lay preliminary evidence before relying
upon it. In the absence of the original and without
examination and proving of the contents, Exh. 106 cannot be
relied upon to prove the outstanding amount. It is settled
position of law that mere exhibiting the documents would not

Page 12 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

prove content of the document.

16. In Alumal Tahelram Versus Mehthram Basarmal,
1968 GLR 1078, this Court even did not consider the entries
in books of account as sufficient to pass decree. Para 4
thereof reads as under:-

“4. The net result of the reading of sec. 34 of the
Indian Evidence Act together with various authorities
referred to here above is that the entries from the
hooks of account regularly kept In the course of
business before they can be acted upon for holding a
person liable thereunder must get some corroborative
evidence from other sources. It may be either oral
evidence of the plaintiff or of the person who wrote
accounts. It may again also be from other documents
such as vouchers receipts etc. in respect of the
transactions that took place between the parties. But
more determining factor should be the circumstances
surrounding the accounts maintained by the plaintiff
if they satisfy the Court about the correctness of those
entries and statements made in such books of account
and they can well serve as a corroborative piece of
evidence required under sec. 34 of the Act as it may
happen that evidence by way of vouchers receipts etc.
may not be there and the oral evidence may not be
available of the person who actually entered into that
transaction. After all what would amount to any such
evidence sufficient to corroborate the entries and
statements in the account books would depend upon
the facts of each case and there can be no hard and
fast rule saying that particular type of evidence such
as oral-direct evidence or of other documentary
evidence is necessarily required.”

17. The above finding applies squarely to the present case.
The plaintiff raised multiple claims under various heads but
failed to produce account books, vouchers, or other
corroborative evidence. The attempt to rely on Exh.106, which

Page 13 of 14
C/FA/1564/2006 CAV JUDGMENT DATED: 03/07/2026

is photocopies of the contents of which were not admitted by
the defendant, does not cure this deficiency or help the
plaintiff to substantiate his claim.

18. In view of the above, this Court finds no substance in the
present first appeal. Accordingly, the first appeal stands
dismissed.

19. Registry is directed to return back the R & P, if any, to
the concerned Court forthwith.

(J. C. DOSHI,J)
SHEKHAR P. BARVE

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SHEKHAR PRAFULBHAI BARVE(HC00200), Principal Pvt. Secretary, at High Court of Gujarat on 03/07/2026 14:34:27

Page 14 of 14