M/S. GIAN CHAND & BROTHERS AND ANOTHERversusRATTAN LAL @ RATTAN SINGH

                    [2013) 3 S.C.R. 601


    M/S. GIAN CHAND & BROTHERS AND ANOTHER                      A
                              v.
             RATTAN LAL @ RATTAN SINGH
              (Civil Appeal No.130 of 2013)

                     JANUARY 8, 2013
                                                                B
   [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

      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
to the witnesses in the cross-examination when the documents F
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 entries.
He has clearly stated that he was able to identify the
signatures. [Para 15) [612-G-H; 613-A-C]                     D
     1.2. 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          E
defendant has said that the arguments in para 6 of the
plaint are wrong and denied in view of the preliminary
objections. 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. But, there         F
was no plea whats'oever as regards the denial of
signature or any kind of forgery or fraud. The plaintiffs
had asserted that there was an acknowledgement under
the signatures of the defendant. But there was no denial
by the defendant about the signatures; and further, the
acknowledgements had been proven without objection.                G
Only in the examination-in-chief, the defendant had
disputed the signature and in the cross-examination he
has mercurially deposed that he does not remember to
have signed at the time of any purchase. [Para 16) (613-
E~H; 614-A-B]                                                      H
    604     SUPREME COURT REPORTS                [2013] 3 S.C.R.

A      1.3. It is well settled principle of law that a person who
  asserts a particular fact is required to affirmatively
  establish it. The burden of proving the facts rests on the
  party who substantially asserts the affirmative issues and
  not the party who denies it but the said principle may not
B be universal in its application and there may be an
  exception thereto. If the plaintiff asserts that the defendant
  had acknowledged the signature, it is obligatory on his
  part to substantiate the same. But the present case is not
  one such case where the plaintiffs have chosen not to
c 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.
D That apart, nothing was put to the witnesses in the cross-
  examination when the documents were exhibited. He
  only came with a specious plea in his evidence which
  was not pleaded. Thus, 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
E signatures. The finding that the plaintiffs had failed to
  discharge the burden is absolutely misconceived in the
  facts of the case. [Paras 17, 21] [614-B-C; 615-D-F]

        1.4. Furthermore, Rules 3, 4 and 5 of Order VIII, CPC
F form an integral code dealing with the manner in which
  allegations of fact in the plaint should be traversed and
  the legal consequences flowing from its non-compliance.
  It is obligatory on the part of the defendant to specifically
  deal with each allegation in the plaint and when the
G defendant denies any such fact, he must not do so
  evasively but answer the point of substance. 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. Rule 4 of Order VIII, CPC
H stipulates that a defendant must not evasively answer the
    GIAN CHAND & BROTHERS v. RATIAN LAL @                605
                RATTAN SINGH
  point of substance. If he receives a certain sum of money, A
  it shall not be sufficient to deny that he received that
  particular amount, but he must deny that he received that
  sum or any part thereof, or else set out how much he
  received, and that if an allegation is made with diverse
  circumstances, it shall not be sufficient to deny it along B
· with those circumstances. Rule 5 of Order VIII, CPC deals
  with specific denial and clearly lays down that every
  allegation of fact in the plaint, if not denied specifically or
  by necessary implication, or stated to be not admitted in
  the pleading of the defendant, shall be taken to be c
  admitted against him. [Paras 22, 23] [615-G-H; 616-A-D]

      1.5. In the instant case, in the written statement, there
 was absolutely evasive denial. Where there is total
 evasive denial and an attempt has been made to make
 out a case in adducing the evidence that he was not D
 aware whether the signatures were taken or not, it is not
 permissible. 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, E
 in an erroneous impression, has overturned the said
 finding. [Para 24 and 26] [616-E-F, 617-D]

      Anil Rishi v. Gurbaksh Singh (2006) 5 SCC 558: 2006
 (1) Suppl. SCR 659; Krishna Mohan Ku/ v. Pratima Maity and F
 others (2004) 9 SCC 468:2003 (3) Suppl. SCR 496; Shashi
 Kumar Banerjee and Others v. Subodt. (umar Bannerjee
 since deceased and after him his legal representatives and
 Others AIR 1964 SC 529; Badat and Co., Bombay v. East
 India Trading Co. AIR 1964 SC 538: 1964 SCR 19; Sushi/ G
 Kumar v. Rakesh Kumar (2003) 8 SCC 673: 2003 (4) Suppl.
 SCR 802 - relied on.
     A. Raghavamma and Another v. A. Chenchamma and
 Another AIR 1964 SC 136: 1964 SCR 933 - referred to.
                                                               H
    606      SUPREME COURT REPORTS                  [2013] 3 S.C.R.

A        2. Though with regard to the amounts in question
    there is some variance in the pleadings in the plaint and
    the eviderce adduced by the plaintiffs but, the variance
  ' is absolutely very little. In fact, there is one variation, i.e.,
    at one time, it is mentioned as Rs.6,64,670 whereas in the
B pleading, it has been stated as Rs.6,24,670 and there is
    some difference with regard to the date. Such a variance
    does not remotely cause prejudice to the defendant. The
    true test is whether the other side has been taken by
    surprise or prejudice has been caused to him. In all
c circumstances, it cannot be said that because of variance
    between pleading and proof, the rule of secundum
    allegata et probate would be strictly applicable. In the
    present case, it cannot be said that the evidence is not
    in line with the pleading and in total variance with it or
    there is virtual contradiction. Thus, the finding returned
0
    by the High Court on this score is unacceptable. [Para
    27] [617-E-G; 618-8-D]
       Celina Coelho Pereira (Ms) and Others v. Ulhas
    Mahabaleshwar Kholkar and Others (2010) 1 SCC 217: 2009
E   (15 ) SCR 558 - relied on.

       3. Furthermore, the plaintiff No. 2, his accountant and
  other witness have categorically stated that the books of
  accounts have been maintained in the regular course of
F business. The same has not been disputed by the
  defendant. In such circumstances, there is no reason that
  the books of accounts maintained by the plaintiff firm in
  the regular course of business should have been rejected
  without any kind of rebuttal or discarded without any
G reason. [Para 28 and 29] [618-E-F; 619-A-B]
       Commissioner of Income Tax, Delhi v. Woodward
    Governor India Private Limited (2009) 13 SC~ 1: 2009 (5)
    SCR 738 - relied on.

H         4. The High Court has erroneously recorded that the
    GIAN CHAND & BROTHERS v. RATTAN LAL @                    607
                RATTAN SINGH
findings returned by the courts below are perverse and A
warranted interference· and, accordingly, the judgment of
the High Court is set aside and that of the courts below
are restored. [Para 30) [619-8-C]

                      Case Law Reference:
                                                                   B
     2006 (1) Suppl. SCR 659 relied on             Para 17
     2003 (3) Suppl. SCR 496 relied on             Para 18

     AIR 1964 SC 529               relied on       Para 19

     1964 SCR 933                  referred to     Para 20
                                                                   c
     1964 SCR 19                   relied on       Para 22, 25
     2003 (4) Suppl. SCR 802 relied on             Para 24
     2009 (15) SCR 558             relied on       Para 27         D

     2009 (5) SCR 738              relied on       Para 28

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 130
of 2013.
                                                                   E
    From the Judgment & Order dated 26.02.2009 of the High
Court of Punjab & Haryana at Chandigarh in RSA No. 1570 of
2008.

    Gautam Narayan, Dayan Krishnan, Nikhil Nayyar for the          F
Appellants.

     The Judgment of the Court was delivered by

     DIPAK MISRA, J. 1. Leave granted.

     2. In this appeal, the assail is to the legal soundness of the G
judgment and decree dated 26.2.2009 in R.S.A. No. 1570 of
2008 passed by the learned single Judge of the High Cou~ of
Punjab and Haryana at Chandigarh whereby it overturned the
decision of the learned Additional District Judge, Kurukshetra
in Civil Appeal No. 96 of 2006 dated 12.03.2008 wherein the H
    608      SUPREME COURT REPORTS                 [2013] 3 S.C.R.


A   judgment and decree dated 20.07.2006 passed by the learned
    Additional Civil Judge (Sr. Division), Pehowa was partially
    modified.

        3. The facts which are necessary to be stated are that the
B plaintiffs-appellants (hereinafter referred to as "plaintiffs") had
  initiated a civil action forming the subject matter of CS No. 337
  of 2004 in the court of Additional Civil Judge (Sr. Division),
  Pehowa for recovery of a total sum of Rs.10,45,620/- along with
  pendente lite and future interest at @18% per annum. It was
  the case of the plaintiffs that plaintiff No. 1 is a registered
C partnership firm carrying the business of commission agent for
  sale and purchase of food grains in Shop No. 69, New Green
  Market at Anaj Mandi in Pehowa and plaintiff No. 2 is the
  partner of the said partnership firm. The plaintiff firm advances
  money to the agriculturists and charges commission on the sale
D 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
E 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
F Rs.5,80,000/- stood in the name of the defandant 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
G 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 requiring him to pay the dues,
  but all requests and demands went in vain and eventually, on
  18.8.2004, he refused to comply with the request. Being put in
H such a situation, the plaintiffs were compelled to institute the
     GIAN CHAND & BROTHERS v. RATIAN LAL @                      609
          RATTAN SINGH [DIPAK MISRA, J.]
  suit on 19.8.2004 wherein they claimed Rs.9,72,670/- which. A
  included the total amount lent to the defendant at various times
· and Rs. 72,950/- towards interest till the date of filing of the suit
  and further claimed pendente lite and future interest @ 18% per
  annum. Be it noted, the borrowings for the financial years 2002-
  2003 and 2003-2004 were reflected in the "rokar bahi".                B
                                                                     •
       4. A written statement was filed by the defendant which
  consisted of two parts, namely, preliminary objections and reply
  on merits. In the preliminary objections, it was stated that the
  suit was not maintainable; that the father of the defendant was
  a customer of the plaintiffs' firm but the ddendant had nothing C
  to do with the plaintiffs; that if there was any liability, it was of
  Kewal Krishan and not of the defendant; that the plaintiffs had
  no locus standi to file the suit and it was defective for non-
  joinder of parties; and that no cause of action arose against
  the defendant. As far as the merits are concerned, reference D
  was made to every paragraph of the plaint and in oppugnation,
  it was stated that some of the averments were false. As far as
  the other averments were concerned, the defendant denied
  them due to lack of knowledge.
                                                                       E
       5. The learned trial Judge, on the basis of the pleadings,
 framed five issues. The principal issues that were really
 addressed on contest were whether the plaintiff was entitled to
 recover an amount of Rs.10,45,620/- along with interest
 pendente lite and future interest@ 18% per annum; that whether F
 the suit of the plaintiff was not maintainable in the present form;
 that whether the plaintiff had no locus standi and cause of action
 to file and maintain the suit; and that whether the suit of the
 plaintiff was bad for non-joinder of necessary parties.
      6. Be it noted, on behalf of the plaintiffs including the partner G
 of the plaintiffs' firm, three witnesses were examined and 13
 documents, namely, copy of ledger, bahi, copy of ledger of S.T./
 C.S.T., copy of Form-A, Form-C, copy of resolution dated
 31.10.1993 and copy of the certificate dated 28.07.2005 were
 brought in the evidence and marked as exhibits. The defendant H
    610      SUPREME COURT REPORTS                   [2013] 3 S.C.R.


A   examined himself as 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
8 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 plaintiffs 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
C 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
D 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
E plaintiffs were entitled to recover the amount of Rs.10,45,620/·
    along with pendente lite and future interest @ 6% per annum
  and, accordingly, decreed the suit.

          8. Grieved by the aforesaid judgment and decree, the
F   defendant preferred a Civil Appeal wherein it was contended
    that when the signatures in the books of acc-0unts were denied,
    it was obligatory on the part of the plaintiffs to get the same
    examined by a handwriting expert; that the signatures in the
    books of accounts had been forged by the plaintiffs; that certain
G   entries did not bear the signatures of the defendant; that the
    plaintiffs had failed to show why such a huge amount had been
    advanced to the defendant; and that the learned trial Judge had
    fallen into error oy decreeing the suit of the plaintiffs.

         9. The first appellate court, considering the contentions
H   raised before it, came to hold that the plaintiffs had placed
    GIAN CHAND & BROTHERS v. RATTAN LAL@                        611
         RATTAN SINGH [DIPAK MISRA, J.]

reliance on the ledger entries which were maintained in the            A
regular course of business; that from Exhibit P-2, it was vivid
that a sum. of Rs.5,80,000/- was taken in cash by the defendant
and it had his signatures and that the aspect of forgery has not
been pleaded and, in any case, had not been proven at all; and
that except two entries, namely, Exh. P-4 and P-9, the                 B
defendant had signed in all the entries which were maintained
in the regular course of business; that the written statement was
absolutely evasive and no plea of forgery being taken, the
challenge that the signatures were obtained fraudulently or by
any other method or undue relationship did not warrant                 c
consideration and, in any case, the onus did lie on the defendant
which was not discharged.

      10. On the aforesaid base, it opined that the plaintiffs were
entitled to recover the amount excluding the sums covered
under those two entries along with proportionate interest and,         D
accordingly, partly allowed the appeal and modified the
judgment and decree of the lear.ned trial Judge.

     11. Being dissatisfied, the defendant preferred second
appeal and the learned single Judge framed four substantial            E
questions of. law, namely, (i) whether a suit for recovery could
be decreed when the pleadings and evidence led by the
plaintiffs were at substantial variance; (ii) whether the plaintiffs
could be said to have established its case, particularly when
the defendant had denied the factum of borrowing any sum and           F
the signatures on the cash book and no evidence including
document/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         G
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 · H
    612      SUPREME COURT REPORTS                   [2013] 3 S.C.R.


A 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
B 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
c not substantiate the claim and the onus to prove the accounts
  and rokar bahi having not been discharged, the judgments of
  the fora below were unsustainable. Hence, the present appeal.

        13. We have heard Mr. Gautam Narayan, learned counsel
  for the appellants. Despite service of notice, there has been no
D appearance on behalf of the respondent.

        14. On a careful reading of the judgment, it is noticeable
  that the High Court has observed that the findings returned by
  the courts below are perverse and, accordingly, jurisdiction
E under Section 100 of the Code of Civil Procedure could be
  exercised. The perversity has been noticed on two counts,
  namely, incorrect placing of onus on the defendant to prove that
  the signatures had been forged more so when there was denial
  of the same and second, the variance in the pleadings and the
F evidence as regards the amounts in question were not
  appositely taken note of. Thus, we are required to see whether
  the approach of the learned single Judge in annulling the
  judgments of the courts below is correct on the aforesaid
  grounds which, according to him, reflect perversity of approach.
G      15. First, we shall deal with the onus to prove in such a
  case. The plaintiffs, in paragraphs 4 and 5 of the plaint, 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 amount
H had been duly entered in the books of accounts which the
    GIAN CHAND & BROTHERS v. RATTAN LAL @                          613
         RATTAN SINGH [DIPAK MISRA, J.]
defendant had acknowledged under his signatures in the                     A
corresponding entries. The Accountant Jf 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 the defendant. It is admitted by him that Exh. P-9
did not bear the signature of the defendant. It is worthy to note          8
that 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 entries. He has clearly stated that he was able
to identify the signatures. The defendant had examined himself
as DW-1 and had only stated that he had no dealings with the               C
plaintiffs but his father was a customer of the firm. He had
disputed to have signed any entries. In the cross-examination,
he has admitted his signatures on the written statement and
stated that he did not remember whether at the time of
purchase, his signatures were taken or not.
                                                                           D
       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             E
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              F
and denied in view of the preliminary objections. ft 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               G
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. There was no denial by
the defendant about the signatures; and further, the                       H
    614       SUPREME COURT REPORTS                   [2013) 3 S.C.R.


A ackAcwledgements had been proven without objection. Only in
  the examination-in-chief, the defendant had disputed the
  signature and in the cross-examination he has mercurially
  deposed that he does not remember to have signed at the time
  of any purchase.
B       17. It is well settled principle of law that a person who
  asserts a particular fact is required to affirmatively establish it.
  In Anil Rishi v. Gurbaksh Singh1, it has been held that the
  burden of proving the facts rests on the party who substantially
  asserts the affirmative issues and not the party who denies it
C and the said principle may not be universal in its application
  and there may be an exception thereto. The purpose of referring
  to the same is that if the plaintiff asserts that the defendant had
  acknowledged the signature, it is obligatory on his part to
  substantiate the same. But the question would be what would
D be the consequence in a situation where the signatures are
  proven and there is an evasive reply in the written statement
  and what should be construed as substantiating the assertion
  made by the plaintiff.

E        18. In Krishna Mohan Ku/ v. Pratima Maity and Others2,
    it has been ruled thus: -

          "When fraud, misrepresentation or undue influence is
          alleged by a party in a suit, normally, the burden is on him
          to prove such fraud, undue influence or misrepresentation."
F
       19. In Shashi Kumar Banerjee and Others v. Subodh
  Kumar Bannerjee since deceased and after him his legal
  representatives and Others, 3 a Constitution Bench of this Court,
  while dealing with a mode of proof of a will under the Indian
G Succession Act, observed that where the caveator alleges
  undue influence, fraud and coercion, the onus is on him to prove
  the same.
  1. (2006) 5 sec 558.
  2. (2004) 9 sec 468.
H 3. AIR 1964 SC 529..
     GIAN CHAND & BROTHERS v. RATTAN LAL @                  615
          RATTAN SINGH [DIPAK MISRA, J.]
    20. In A. Raghavamma and Another v. A. Chenchamma A
and Another", while making a distinction between burden of
proof and onus of proof, a three-Judge Bench opined thus: ~

      "There is an essential distinction between burden of proof
      and onus of proof : burden of proof lies upon the person
                                                                    8
      who has to prove a fact and it never shifts, but the onus of
      proof shifts. The burden of proof in the present case
      undoubtedly lies upon the plaintiff to establish the factum
      of adoption and that of partition. The said circumstances
      do not alter the incidence of the burden of proof. Such
      considerations, having regard to the circumstances of a C
      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 D
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 E
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 F
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 c;an be looked from another angle.
Rules 3, 4 and 5 of Order VIII form an integral code dealing G
with the manner in which allegations of fact in the plaint should
be traversed and the legal consequences flowing from its non-
compliance. It is obligatory on the part of the defendant to

4.   AIR 1964 SC 136.                                              H
    616       SUPREME COURT REPORTS                  [2013) 3 S.C.R.

A 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
B each allegation of fact (see Badat and Co., Bombay v. East
  India Trading Co. 5).

       23. Rule 4 stipulates that a defendant must not evasively
  answer the point of substance. It is alleged that if he receives
C a certain sum of money, it shall not be sufficient to deny that
  he received that particular amount, but he must deny that he
  received that sum or any part thereof, or else set out how much
  he received, and that if an allegation is made with diverse
  circumstances, it shall not be sufficient to deny it along with
  those circumstances. Rule 5 deals with specific denial and
D clearly lays down that every allegation of fact in the plaint, if not
  denied specifically or by necessary implication, or stated to be
  not admitted in the pleading of the defendant, shall be taken to
  be admitted against him.

E      24. We have referred to the aforesaid Rules of pleading
  only to highlight that in the written statement, there was
  absolutely evasive denial. We are not proceeding to state
  whether there was admission or not, but where there is total
  evasive denial and an attempt has been made to make out a
F case in adducing the evidence that he was not aware whether
  the signatures were taken or not, it is not permissible. In this
  context, we may profitably refer to a two-Judge Bench decision
  in Sushi/ Kumar v. Rakesh Kumafl wherein. while dealing with
  the pleadings of election case, this Court has held thus: -
G         "73. In our opinion, the approach of the High Court was not
          correct. It failed to apply the legal principles as contained
          in Order 8 Rule 3 and 5 of the Code of Civil Procedure.

    5.   AIR 1964 SC 538.
'
H 6. c2003} s sec 673.
     GIAN CHAND & BROTHERS v. RATIAN LAL @                    617
          RATIAN SINGH [DIPAK MISRA, J.]
      The High Court had also not analysed the evidence              A
      adduced on behalf of the appellant in this behalf in detail
      but merely rejected the same summarily stating that vague
      statements had been made by some witnesses. Once it
      is held that the statements made in paragraph 18 of the
      election petition have not been specifically denied or         B
      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    C
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        D
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.
                                                                      E
     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 F
absolutely very little. In fact, 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 considered view, such a variance
does not remotely cause prejudice to the defendant. That apart, G
it does not take him by any kind 6f surprise. In Celina Coelho
Pereira (Ms) and Others v. Ulhas Mahabaleshwar Kholkar
and Others7, the High Court had non-suited the landlord on the

1.   c2010) .1 sec 211.                                              H
    618       SUPREME COURT REPORTS                  [2013] 3 S.C.R.

A ground that he had not pleaded that the business of the firm
  was conducted by its partners, but by two other persons and
  that the tenant had parted with the premises by sub-letting them
  to the said two persons under the garb of deed of partnership
  by constituting a bogus firm. This Court observed that there is
B substantial pleading to that effect. The true test, the two-Judge
  Bench observed, was whether the other side has been taken
  by surprise or prejudice has been caused to him. In all
  circumstances, it cannot be said that because of variance
  between pleading and proof, the rule of secundum al/egata et
c probate would be strictly applicable. In the present case, we
  are inclined to hold that it cannot be said that the evidence is
  not in line with the pleading and in total variance with it or there
  is virtual contradiction. Thus, the finding returned by the High
  Court on this score is unacceptable.
D      28. The next aspect which requires to be addressed is
  whether the books of accounts could have been rejected by the
  High Court on the ground that the entries had not been proven
  due to dispute of signatures solely on the foundation that the
  plaintiff had not examined the handwriting expert when there
E was a denial of the signature. We have already dealt with the
  factum of signature, the pleading and the substance in the
  evidence. The plaintiff No. 2, his accountant and other witness
  have categorically stated that the books of accounts have been
  maintained in the regular course of business. The same has
F not been disputed by the defendant. In such a circumstance,
  we may profitably reproduce a few lines from Commissioner
    of Income Tax, Delhi v. Woodward Governor India Private
    Limited: 8 -

          "One more principle needs to be kept in mind. Accounts
G
          regularly maintained in the course of business are to be
          taken as correct unless there are strong and sufficient
          reasons to indicate that they are unreliable."


H a.   (2009) 13 sec 1.
   GIAN CHAND & BROTHERS v. RATTAN LAL @                  619
        RATTAN SINGH [DIPAK MISRA, J.]
      29. Applying the said principle to the pleadings and the A
evidence on record, we find no reason that the books of
accounts maintained by the plaintiff firm in the regular course
of business should have been rejected without any kind of
rebuttal or discarded without any reason.
                                                                 B
     30. In view of the aforesaid analysis, we conclude and hold
that the High Court has erroneously recorded that the findings
returned by the courts below are perverse and warranted
interference and, therefore, the judgment rendered by it is
legally unsustainable and, accordingly, we allow the appeal, set C
aside the judgment of the High Court and restore that of the
courts below. In the facts and circumstances of the case, there
shall be no order as to costs.

8.8.8.                                       ~PJl~Cll ~llowed.