RAM LABHAYA, J.: This appeal is from the judgment and decree of the Subordinate Judge, Lower Assam Districts, dated 7th January, 1952, by which plaintiff's suit for reco­very of a sum of Rs. 71,980 was decreed. Defendant has appealed. (2) The case of Mirzamall Agarwalla, manag­ing-proprietor of Messrs. Dasuram Mirzamal, as dis­closed in the plaint was that Santiranjan Das Gupta, defendant was doing business in Nowgong town and had also a rice mill at Hojai in the District of Now­gong. He was having cash and goods from plaintiffs from time to time. The account was settled on 18th December, 1946. The defendant's liability by that date had reached Rs. 61,000. This sum included some interest. He acknowledged this liability and executed a writing called Mabalakbandi in plaintiff's Khata at Gauhati in his own hand. A sum of Rs. 10,980 was added to the principal amount on account of interest calculated at the rate of six per cent, per annum as agreed to by the de­fendant by his writing. A copy of the plaintiff's Khata showing defendant's liability as also the Maba­lakbandi executed thereunder was filed with the plaint. It was averred that defendant had failed to pay the amount due despite repeated demands. (3) Defendant asked for time twice to put in his written statement. On 20th January, 1950, he applied for permission to examine plaintiff's accounts. Plaintiff was directed to produce the accounts on 25th January. On 25th January, 1950, it was ordered that defendant was not entitled to examine any other books of account except the document relied on by the plaintiff in his plaint, a copy of which had been filed. (4) The suit was resisted. Several legal pleas were raised. It was pleaded that the suit was not maintainable, the plaintiff had no right to sue the defendant, there was no cause of action for the suit, the Gauhati Court had no jurisdiction and the suit was barred by time. On facts the allegation that the defendant had taken cash and goods from the plain­tiff from time to time and on a settlement of ac­counts a sum of Rs. 61,000 was found due from him which he acknowledged as due by his writing, was denied. It was alleged that the Mabalakbandi was not executed at Gauhati. It had been written at Hojai in the District of Nowgong. 61,000 was found due from him which he acknowledged as due by his writing, was denied. It was alleged that the Mabalakbandi was not executed at Gauhati. It had been written at Hojai in the District of Nowgong. At the time it was writ­ten there were no entries of accounts at the top portion of the page on which the Mabalakbandi was written . That portion was blank when the defendant wrote Ext. 2 (1) (Malakbandi). The correctness of the entries which appeared at the top of Ext. 2 (1) was also denied and it was pleaded that the writing of Ext. 2 (1) was not intended to fasten liability on the defendant. It was written to show that the amount of Rs. 61,000 was due to the defendant from the plain­tiff as the writing states in express terms. Liability to the plaintiff was denied and it was claimed that a very large amount was due to the defendant from plaintiff. Allegations in the plaint about demands by the plaintiff were also repudiated. The issues framed were as follows:- 1. Whether the suit is beyond the jurisdiction of this Court? 2. Whether the plaintiff is competent to sue? 3. Whether the suit is barred by limitation? 4. Whether the plaintiff's Khata entries are not correct or regularly maintained? 5. Whether defendant executed the Mabalak­bandi as alleged? 6. Whether the defendant owed the plaintiff to the extent of the claim? 7. What relief, if any, is the plaintiff entitled to? (5) The claim has been founded on a document which has two parts. These parts have been marked Exts. 2 and 2 (1). Ext. 2 contains the account of Santiranjan Das Gupta of Nowgong for Sambat 2002. The whole of this document appears on page 5 of the supplementary Paper Book. In the account of Santiranjan Das Gupta a sum of Rs. 58,198-8-9 was brought forward from the previous year. There were six more debit entries in this account. On 18th December, 1946, a sum of Rs. 961-7-3 was debited on account of interest according to the admission of the defendant after deductions of all amounts objected to by him. The total on the debit side was Rs. 82,684-9-0. The total of the credit entries on this page came to Rs. 21,684-9-0. Accord­ing to this account the sum of Rs. 61,000 was due from defendant to the plaintiff. The total on the debit side was Rs. 82,684-9-0. The total of the credit entries on this page came to Rs. 21,684-9-0. Accord­ing to this account the sum of Rs. 61,000 was due from defendant to the plaintiff. Just below this ac­count is the Mabalakbandi Ext. 2 (1) which is in the following terms:- "The sum of Rs. 61,000 (sixtyone thousand) only including all interest and principal amount of all pla­ces like Hojai, Jamunamukh, Gauhati is due to me up till 18-12-46. The interest for the future will be calculated at Rs. 6 per cent, per annum. Sd. Santi Ranjan Das Gupta 18-12-46." (6) The signature of the defendant has been marked as Ext. 2 (2). The writing Ext. 2 (1) is all in the hand of the defendant. It bears one one-anna revenue stamp also. (7) There is an obvious conflict between Ext. 2 and Ext. 2 (1). Ext. 2 shows that the sum of Rs. 61,000 was due to the plaintiff from the defen­dant. In the writing Ext. 2 (1) executed by the de­fendant it was stated that a sum of Rs. 61,000 in­cluding interest and principal amount of all places like Hojai, Jamunamukh, Gauhati was due to him up till 18th December, 1946. Taken at its face value the Mabalakbandi Ext. 2 (1) states just the opposite of what Ext. 2 the Khata account would show. Defendant's case therefore was that at the time he executed the writing Ext. 2 (1) the account at the top was not there and by his writing he merely stated that the sum of Rs. 61,000 was due to him. He acknowledged no liability to the plaintiff. The interest and the principal were payable to him. , (8) The learned trial Judge has considered all the evidence produced before him very minutely. He found all the issues in plaintiff's favour and decreed the amount claimed with costs and also with future interest at the rate of 3 per cent, till realisation. Ap­pellant's learned counsel has argued that 1. the plaint did not disclose any cause of ac­tion. The defendant had raised the plea in his writ­ten statement. The trial Judge failed to frame an is­sue on the point. The plaint itself was liable to re­jection. 2. the suit was not maintainable on the docu­ment Ext. 2 (1). By itself the writing Ext. the plaint did not disclose any cause of ac­tion. The defendant had raised the plea in his writ­ten statement. The trial Judge failed to frame an is­sue on the point. The plaint itself was liable to re­jection. 2. the suit was not maintainable on the docu­ment Ext. 2 (1). By itself the writing Ext. 2 (1) ac­knowledges no liability to the plaintiff; nor does it import or imply a promise to pay a sum of Rs. 61,000 to him. The account at the top was written after­wards and did not exist at the time the writing was executed, Ext. 2 (1) therefore could not form the foundation of any claim or the suit. 3. the writing Ext. 2 (1) purports to be an ac­knowledgment. It is not capable of any rectification; nor can its terms be varied in any way. An acknowl­edgment has to be in the handwriting of the debtor. He has also urged that the plaintiff has not sought rectification or the invalidation of Ext. 2 (1) either on the basis of fraud or mistake and the suit on Ext. 2 (1), as it stands, cannot be maintained. 4. even if the words "to me" in Ext. 2 (1) are read as "by me" it would be for the plaintiff to show that this acknowledgment was made within the pe­riod of limitation which he has failed to show. 5. the entries in the Khata apart from Ext. 2 (1) also would not suffice to fasten liability on the de­fendant. They would neither be relevant in the ab­sence of proof that they were made in the regular course of business nor could a decree be passed on them in the absence of such corroboration as S. 34 of the Indian Evidence Act requires. (9) The learned counsel for the defendant-ap­pellant also made a grievance of the two interlocu­tory orders passed in the case. It was pointed out that defendant was not permitted to examine books of account before he put in his written statement. He was also not permitted to put in a certified copy of a profit and loss statement filed by him in an Income-tax case. In this document defendant is alleged to have shown a sum of Rs. 61,000 as due to him from the plaintiff's firm in 1948 before the suit was insti­tuted. He was also not permitted to put in a certified copy of a profit and loss statement filed by him in an Income-tax case. In this document defendant is alleged to have shown a sum of Rs. 61,000 as due to him from the plaintiff's firm in 1948 before the suit was insti­tuted. The learned counsel argues that the docu­ment was admissible and the refusal of the Court to accept it was without any legal justification. (10) Mr. Lahiri, the learned counsel for the plaintiff-respondent argued that Ext. 2 and Ext. 2 (1) have to be read together. Ext. 2 showed the liability of the defendant when the account was settled. The account shows that defendant was liable to the plain­tiff to the extent of Rs. 61,000. It is below this that Ext. 2 (1) was executed by the defendant. There is overwhelming intrinsic evidence in the document which according to him points to the conclusion that defendant was a debtor to the extent of Rs. 61,000, agreed to the liability and promised to pay interest at the rate of six per cent, per annum. Ext. 2 and Ext. 2 (1) taken together would amount to an agreement and in any case an acknowl­edgment implies a promise to pay, though it was not necessary for the plaintiff to rely on any impli­cation, as the liability had been acknowledged in express terms. He proceeded to argue that confusion no doubt was caused by the words ''to me'' which appear in Ext. 2 (1). But it is open to the Court to construe the document and give effect to what was agreed to between the parties. (11) He explained that plaintiff had no meant of knowing even when the error in Ext. 2 (1) was discovered some days before the institution of the suit, whether the words "to me'' instead of "by me" were written by the defendant intentionally and with intent to defraud or by some mistake due to oversight or inadvertence. Whatever the reason for the error he contended its rectification was possible without any specific prayer for it. Ext. 2 and Ext. 2 (1) read together and interpreted correctly supply a valid foundation for the claim. Extraneous evi­dence in his view was admissible for ascertaining the true intention of the parties. (12) No question of limitation arose as the do­cument in suit amounted to an agreement. Ext. 2 and Ext. 2 (1) read together and interpreted correctly supply a valid foundation for the claim. Extraneous evi­dence in his view was admissible for ascertaining the true intention of the parties. (12) No question of limitation arose as the do­cument in suit amounted to an agreement. There was a promise to pay and therefore it was not neces­sary for the plaintiff to show that Ext. 2 (1) was exe­cuted within three years from the date that the lia­bility accrued. He argued further that from the ac­count produced by defendant himself it was obvious that the claim based on previous accounts was with­in time on 18th December, 1946. He also support­ed the two interlocutory orders, the correctness of which has been assailed. (13) The first contention of the learned counsel for the appellant has got no merit. The defendant raised several questions of law. But he did not plead that the plaint did not disclose any cause of action and was liable to rejection under O. 7, R. 11, Civil Procedure Code. The plea raised was that there was: no cause of action for the suit. This is something different from saying that the plaint itself did not disclose the cause of action. A plaint may disclose a cause of action which may not prove sufficient to sustain the suit. The suit in that case would be liable to dismissal. But it could not be said that the plaint does not disclose any cause of action. In this case the suit was based on Ext. 2 and Ext. 2 (1). The plaintiff based his claim on these two parts of the document. The case of the defendant was that that part of the document which was marked Ext. 2 was not there at the time Ext. 2 (1) was executed by him. There was also the question whether Ext. 2 (1) correctly expressed the agreement arrived at between the parties. There was a serious issue between the parties and though the defendant might have urged that on the basis of Ext. 2 (1) alone the suit was not main­tainable or plaintiff had no cause of action it was not possible for him to say that the plaint as it stood] did not disclose any cause of action. He therefore avoided saying so. 2 (1) alone the suit was not main­tainable or plaintiff had no cause of action it was not possible for him to say that the plaint as it stood] did not disclose any cause of action. He therefore avoided saying so. There was thus no occasion for the Court to frame an issue on the point whether the plant was liable to rejection by reason of the non-disclosure of a cause of action for the suit. There was no such plea nor was any issue asked for on this point during the whole course of a very long trial. There was no obligation on the Court in these circumstances to frame an issue whether the plaint was liable to rejection. (14) If the plaint does not disclose any cause, of action it is the duty of the Court to reject it before [summoning the defendant. A reading of the plaint "with the document with which it was accompanied could not have justified the rejection of the plaint, and this even the defendant did not find it possible to urge in his written statement. The argument of the learned counsel for the appellant was based on the written statement. His contention was that the defendant pleaded that the plaint did not disclose any cause of action and the Court had failed to frame an issue. This contention is not borne out by the written statement and therefore has to be repelled Plaintiffs right to sue was the crucial or at least the main point in the case and has been the subject matter of adjudication by the Court below. (15) The next question stated broadly on which parties join issue is as to what the result of the set­tlement of accounts between them was, or in other words who out of the two was the creditor. It is common ground that they had accounts. The ac­counts were gone into. A settlement was made. A sum of Rs. 61,000 was found due. So far there is agreement. The question is to whom this sum of Rs. 61,000 was due - to the plaintiff or the defen­dant? Plaintiff relies on the statement of account at the top of Ext. 2 (1). Defendant repudiates the correctness of the statement of account appearing at the top of Ext. 2 (1) and has pleaded that the statement was not there when he executed Ext. 2 (1). 61,000 was due - to the plaintiff or the defen­dant? Plaintiff relies on the statement of account at the top of Ext. 2 (1). Defendant repudiates the correctness of the statement of account appearing at the top of Ext. 2 (1) and has pleaded that the statement was not there when he executed Ext. 2 (1). We may therefore first determine whether the statement of account was there and the liability arising from it was agreed to be acknowledged by the defendant before he executed Ext. 2 (1). (16) Mirzamal Agarwala, plaintiff, came into the witness box. He deposed that his firm was do­ing business at Jamunamukh, Hojai, Gauhati, Sapatgram, Baihata, Shillong, Khairabari and Kharupetia. He had seven oil and rice mills. He was paying more than rupees four lacs a year as income-tax. He also claimed that his firm was maintaining regular accounts. Defendant was doing business in Hojai and Nowgong. He used to receive cash and goods from Ms firm on credit and owed more than rupees sixtyone thousand. Some part of the claim was remitted and the claim was reduced to rupees sixtyone thousand, which was acknowledged as due by the defendant. The writing Ext. 2 (1) was given by him in acknowl­edgment of that liability. Ext. 2 was the account in Ext. 1 the Khata which stood in the name of defen­dant and Ext. 2 (1) was the Mabalakbandi in the hand of the defendant. In his Khata Ext. 2 (2) was defen­dant's signature. Ext. 2 (1) was written at Gauhati. It was written in English which he did not know. The Khata remained in his possession all along. He made demands for the money and when the limita­tion was about to expire he went to the defendant at Nowgong and asked him to pay or at least to give a fresh acknowledgment. He declined saying that no question of limitation arose between gentlemen. He emphatically denied that he owed any mo­ney to the defendant on any account. He stated in his examination-in-chief that when he showed Ext. 2 (1) to his pleader before the suit was instituted he learnt that the defendant had written in Ext. 2 (1) that the sum of rupees sixtyone thousand was owing to him. The plaintiff stated that this was done frau­dulently. He added that defendant had never made any demand of money from him and the suggestion that Ext. 2 (1) to his pleader before the suit was instituted he learnt that the defendant had written in Ext. 2 (1) that the sum of rupees sixtyone thousand was owing to him. The plaintiff stated that this was done frau­dulently. He added that defendant had never made any demand of money from him and the suggestion that Ext. 2, the account in the Khata was written after the execution of the Mabalakbandi was false. In cross-examination he stated that Ext. 1 had been shown to the Income-tax Officer. It had been signed by offi­cers of his department. He admitted not having filed any copy of the Rokar, but added that he had the Rokar with him. It was then available for examina­tion. In regard to the transactions with the defen­dant he stated that they were probably of Sambat 2000 or 2001. (17) Plaintiff's version may now be considered in the light of other evidence bearing on this intri­guing question. The evidence that the document affords is circumstantial in nature and it is of a very impressive character as would be indicated by the cir­cumstances enumerated below. (18) The amount of rupees sixtyone thousand included some interest also. The principal amount represented the total of dues of all places like Hojai, Jamunamukh and Gauhati. Plaintiff admittedly was doing business at Hojai, Jamunamukh and Gauhati. It was possible that defendant may be owing money to different branches of his firm. If the defendant was a creditor his business being at Hojai the amounts from all places would be due at Hojai. He does not claim to have any business at Jamunamukh and Gau­hati. Therefore he could not say that rupees sixty-one thousand represented the total dues of Hojai, Ja­munamukh and Gauhati. These places are the places of the creditor. Money was due to these places. This part of the writing conflicts with the claim of the defendant that he was a creditor. The learned counsel explained that if he was doing business with the plaintiff's firm money could be due to him at all the three places Hojai, Jamunamukh and Gauhati, even though he had no business of his own at Jamunamukh and Gauhati. This is possible. But the amount would be due to him at Hojai from Jamunamukh and Gauhati, but this is not what is stated. This is possible. But the amount would be due to him at Hojai from Jamunamukh and Gauhati, but this is not what is stated. If the defendant was the creditor, this part of the writing would not fit in with existing facts which are not in dispute. (19) The Mabalakbandi Ext. 2 (1) executed by the defendant is on plaintiff's Khata. Now liability is always or at least generally acknowledged by the debtor. The acknowledgment whether it appears in the account books or on a separate paper is always in the possession of the creditor. It is he who needs the acknowledgment for showing or proving liability or for obtaining extension of limitation if and when necessary. A creditor stating that something is due to him and on his debtor's account book is something un­heard of. A statement like this is of no use to him. In law it is no more than an admission in his own favour. In point of fact he cannot make any use of it, or, the statement is in the possession of the debtor. The creditor will have no access to it. Defendant's statement that he executed Ext. 2 (1) on plaintiffs Khata even though the sum was due to him is there­fore most amazing. He himself realised its fantastic character. When asked why he executed an entry in his own favour on plaintiff's book he stated as fol­lows:- ''I gave away to the plaintiff the Khata contain­ing Ext. 2 (1). It did not strike me that as he owed me money he should rather give me a writing ac­knowledging the dues to me. I had not asked him to give me also an acknowledgment for the dues to me.'' He on his own showing had been doing business for some 10/12 years. Before that he had been an em­ployee of the Steel Brothers. The sum due to him was not less than rupees sixtyone thousand. He owns a rice mill. At the time he gave evidence his alleg­ed claim had swelled to Rs. 1,77,417. According to him he had advanced Rs. 45,000 for purchasing mill parts, and the rest of the amount of about Rs. 16,000 was due to him on account of purchases made by plaintiff from him. His mill was mortgaged to the Pioneer Bank for Rs. 1,85,000. At the time he gave evidence his alleg­ed claim had swelled to Rs. 1,77,417. According to him he had advanced Rs. 45,000 for purchasing mill parts, and the rest of the amount of about Rs. 16,000 was due to him on account of purchases made by plaintiff from him. His mill was mortgaged to the Pioneer Bank for Rs. 1,85,000. Not only it did not occur to him at the time he executed Ext. 2 (1) that he should get a writing from the plain­tiff which should remain in his possession or on his own books which should have been there when the accounts were settled (if his version is true), but he did not bother to take anything in writing from the plaintiff at any time after 18th December, 1946. It may not have occurred to him to- obtain a writing from his debtor, but a. man who is doing busi­ness in lakhs should realise that his writing out any­thing in his own favour in plaintiff's books was a wholly futile proceeding. His learned counsel has stated that the parties were contemplating to enter into a partnership. It was felt necessary to settle old accounts so that both the parties should know where they stood. But even if accounts were settl­ed to clear the ground the Mabalakbandi executed by him in plaintiff's Khata could be of no avail to him as plaintiff retained his freedom to re-open pre­vious accounts. A statement given by each to the other could alone serve the purpose if in view of any contem­plated relationship a settlement of accounts was con­sidered necessary. It may be stated that no partner­ship was ever entered into between the parties. There is no evidence that plaintiff had any such intention, no correspondence or other dependable evidence has been produced on this point. More than a year after the execution of Ext. 2(1) a milling agreement was entered into between the parties. This agreement has not been shown to have been in contemplation in December, 1946. (20) Jagannath Prosad, a businessman, Sudhir Ganguly, a medical practitioner, Subodh Chandra Paul, another businessman, Pitabasan Chaudhury, an employee of the defendant - all have deposed that they were present when the account was settled be­tween the plaintiff and defendant. It was at defen­dant's rice mill at Hojai. All have deposed that de­fendant did not ask the plaintiff to give him any writ­ing. It was at defen­dant's rice mill at Hojai. All have deposed that de­fendant did not ask the plaintiff to give him any writ­ing. Jagannath Prosad conceded that ordinarily a debtor would give an acknowledgment. Sudhir Ganguli said that it did not strike him that it was for the debtor to give an acknowledgment to the creditor. He also said that defendant did not ask for any writing from the plaintiff. Subodh Chandra Paul has even excelled the defendant. He stated that "there is no distinct rule as to who should give a writing - the debtor or the creditor. A creditor's writing is also enough.'' He pretends not to realise how a creditor's writing in a debtor's book can be of any avail to him, if there are differences. (21) There is obviously no sensible explanation for the conduct of the defendant. If he was the cre­ditor and the debtor came to him and a settlement was made in the presence of the witness, the result should have been some document executed by the debtor in favour of the defendant which he should have kept in his possession. He has considerable business ex­perience. From the way he has conducted his de­fence he may be described as clever, even astute. His conduct in executing the Mabalakbandi on plaintiff's Khata is most damaging to the version giv­en by him and his witnesses. No less than three wit­nesses appear on the scene and all by chance. They were not called. They did not witness the document, but they were prepared to support him that a sum of Rs. 61,000 was found owing to him from the plain­tiff. (22) The parties were not merely clearing the ground. A writing or an instrument was contempla­ted by both. The writing not only acknowledges the liability, but it also embodies the recital that the interest in future shall be calculated at six per cent. There had been no settlement of accounts between the parties before. This was the first occasion when the account was settled and a sum was found due either to one or the other. The debtor wherever he was agreed to pay in­terest at a specified rate. There was promise to pay at least implied, both the principal and the interest. The writing was intended to provide evidence of the transaction which was concluded; it was stamped also. The debtor wherever he was agreed to pay in­terest at a specified rate. There was promise to pay at least implied, both the principal and the interest. The writing was intended to provide evidence of the transaction which was concluded; it was stamped also. The explanation that it was no more than an attempt to clear the ground is most unconvincing. (23) No creditor has been known to have given a stamped writing to his debtor, for, that would de­feat the very purpose for which the document is exe­cuted. Even if a creditor keeps the document in his possession it is of no use to him; it does not bind the defendant. (24) Ext. 2 (1), the writing in the hand of the de­fendant is in the middle of the page. It is in Eng­lish. He has deposed that at the time of the writ­ing, there was no statement of account at the top of Ext. (2) which now appears. This appears to me to be extremely improbable. The parties had met for the settlement of accounts. The accounts were gone into and settled. The liability was determined. It would be most natural to reduce a short statement of account into writing. The top portion of plain­tiff's Khata where the statement of accounts appears even if blank before must have been written before Ext. 2 (1) was executed. This accounts for the circumstance that defen­dant executed the writing at the middle of the page which was unsuitable for the purpose because it is just that place where the Khata is folded into two. The account shows that he is a debtor to the extent of rupees sixtyone thousand. The last entry on the debit side was an item of Rs. 961-7-3 on account of interest after some deductions. Seen in the light of the account there could be no manner of doubt that the defendant was a debtor. Defendant therefore denied the existence of this account even though on his own showing there was a settlement of account which was possible only after the previous account was all gone into. His witnesses also supported him. But the version suffers from the defect of inherent improbability. Defendant therefore denied the existence of this account even though on his own showing there was a settlement of account which was possible only after the previous account was all gone into. His witnesses also supported him. But the version suffers from the defect of inherent improbability. (25) It is not easy to conceive how these de­fendant's witnesses, his neighbouring businessmen and his doctor naturally sympathetic and friendly to him, should all come on uninvited and be permitted to stay on all through even though an account cover­ing a period of more than two years was being gone into. The coincidence of all these witnesses appear­ing at that time does strike as strange. The debtor whoever he was would not have relished their pre­sence. They were not needed for attestation. (26) In the written statement the position taken up by the defendant was that the top portion of the page containing his writing was blank, when he executed the writing. The entries which appear there were written subsequently in his absence and they did not correctly represent all transactions be­tween the parties. When appearing in the witness box he amplified the statement. He said that the top portion was left blank deliberately. He realised that signing in the middle of the page makes his ver­sion shaky and improbable. Some way out was ne­cessary. He deposed that it was left blank delibe-lately in order that the plaintiff could put in a state­ment of accounts there which was to agree with his writing. The improvement was due to the compulsion of circumstances. But it adds to the improbable character of the statement. If the account had to be written by the plaintiff, why should it not have been done then and why should the defendant have been in such a frightful worry to execute the Mabalakbandi and let the plaintiff go? This course could be adop­ted only if the defendant as a debtor acknowledged his existing liability to the satisfaction of the creditor and then left him to write an account in conformity therewith. Again though defendant's witnesses stat­ed that Ext. 2 was not there when Ext. 2 (1) was exe­cuted, they do not say that it was left to be written up later by plaintiff as a part of their arrangement. (27) Defendant's case is that the sum of rupees sixtyone thousand includes three items of deposits amounting to Rs. Again though defendant's witnesses stat­ed that Ext. 2 was not there when Ext. 2 (1) was exe­cuted, they do not say that it was left to be written up later by plaintiff as a part of their arrangement. (27) Defendant's case is that the sum of rupees sixtyone thousand includes three items of deposits amounting to Rs. 45,000 made by him for purchase of parts of the mill machinery. These according to trim were contained in account No. 2 (Khatian page No 44, Ext. F). Three items in this account make a total of Rs. 45,000. The account continues in Exts. G and H and the total is shown as Rs. 61,000. Apart from this account a copy of another ac­count No. 1 Ext. E has also been filed and plaintiff is shown as liable to the extent of Rs. 53,740. No reasonable explanation has been given for two ac­counts. All that is suggested is that the three main items making a total of Rs. 45,000 represented advan­ce sale price of machinery parts to be supplied. There is nothing even in account No. 2 to show that these amounts were paid as advance price for any machi­nery or its parts. There is no correspondence on the record showing that parts of any machinery were or­dered and had to be paid for in advance. (28) On behalf of the defendant a notice was sent to the plaintiff to admit or deny certain pay­ments alleged to have been made by the defendant to him. The notice is on page 12 of the printed record. Some payments including the three items making up a total of Rs. 45,000 were paid by cheques on M/s. Pioneer Bank Limited and were collected at Gauhati. There are other payments also by the de­fendant to the plaintiff. All payments shown in the notice are from 1351 B. S. onwards. It was admitted by the plaintiff that all items of payments shown in the notice were received. In the notice it was not stated that any parti­cular item was for purchase or any machinery or its parts. These items of payment do not appear in the account Ext. 2 on plaintiff's Khata. The account in Ext. 2 is for 2002 Sambat year. The balance of Rs. 58, 198-8-9 was brought forward. The previous account has not been put in by the plaintiff. These items of payment do not appear in the account Ext. 2 on plaintiff's Khata. The account in Ext. 2 is for 2002 Sambat year. The balance of Rs. 58, 198-8-9 was brought forward. The previous account has not been put in by the plaintiff. It is contended that plaintiff could have shown that the sum of Rs. 45,000 alleged to have been paid for parts of the machinery had been duly adjusted in the accounts from which Rs. 58,198-8-9 was brought forward but the plaintiff failed to do it. The conten­tion that toe plaiutili kept back his account books to conceal amounts received but not credited to de­fendant. Whilst plaintiff did not put in his previous ac­count in evidence the inference sought to be drawn from it is not justified. Plaintiff based his claim only on Exts. 2 and 2 (1) as forming one document. He did not produce previous accounts in support of the account Ext. 2. If in law it was necessary for him co support his account or in other words if he could not succeed1 on the document in suit consisted of two parts Ext. 2 and Ext. 2(1), the risk was entirely his. He would fail in that case. But if he could succeed on Exts. 2 and 2 (1) properly construed or even rec­tified if necessary, it would be for the defendant to show that any item of payment shown in the notice to the plaintiff was not adjusted in the account or that he got no credit for it. (29) Defendant applied for permission to exa­mine the account books of the plaintiff before put­ting in his written statement. The Court permitted him to examine the document (Exts. 2 and 2 (1)) form­ing the basis of the suit. When plaintiff appeared in the witness box he had his Rokar with him. He de­posed that he had brought it with him. When ad­mitting payment received by him in reply to defen­dant's notice he had stated explicitly that all pay­ments were entered in his account which would be produced when required. He was ready to show these adjustments. The defendant had then an opportunity of ex­amining the Rokar and cross-examining the plaintiff on it with a view to showing that any item of pay­ment was not credited to his account or that he was a creditor, not a debtor. He was ready to show these adjustments. The defendant had then an opportunity of ex­amining the Rokar and cross-examining the plaintiff on it with a view to showing that any item of pay­ment was not credited to his account or that he was a creditor, not a debtor. He then did not ask for the examination of the Rokar. No questions were asked from plaintiff about previous accounts, payments or adjustments. The matter was left at that stage. In these circumstances whilst plaintiff may not succeed if production of previous accounts or Rokar was necessary for his case, the defendant can derive no( support for his own accounts from plaintiff's fail­ure to prove the previous account in support of Ext. 2, nor can it be urged on his behalf that the statement of account in Ext. 2 was erroneous. To get over the settlement when proved it would be for the defen­dant to plead mistake or fraud which induced him to execute the Mabalakbandi. (30) The learned counsel for defendant-appellant has argued that there is some intrinsic evidence in Ext. 2 which shows that the account could not be correct. He has pointed out that whilst the second and the third entries on the debit side appeared on folios 80 and 88 of the cash book, the next two items Nos. 4 arid 5 appeared on folios 73 and 74. The ar­gument was that the two entries of 6th and 14th Chait, later in point of time, could not appear on earlier folios. They should have been on some folio after 88. The argument is based on a misapprehen­sion. The two entries Nos. 4 and 5 for Rs. 3,461-7-0 and Rs. 1,595 respectively are on different books. One is on Jakar Folio and the other is in the account book in which receipt of goods is entered. This appears from the entries themselves. Plain­tiff in the witness box was not asked how these en­tries came to be made in earlier folios though the transactions came in Chaitra. The defendant there­fore did not allow the plaintiff any opportunity to explain why entries 4 and 5 appeared on folios 73 and 74 respectively. The entries themselves do not support the contention. No conclusion adverse to the plaintiff can be drawn from the order in which en­tries appear. (30a) The learned counsel also argued that an item of Rs. The defendant there­fore did not allow the plaintiff any opportunity to explain why entries 4 and 5 appeared on folios 73 and 74 respectively. The entries themselves do not support the contention. No conclusion adverse to the plaintiff can be drawn from the order in which en­tries appear. (30a) The learned counsel also argued that an item of Rs. 1,266-6-0 was admittedly received by the plaintiff on 28th March, 1946, by a cheque on the Pioneer Bank Ltd., at its Gauhati branch. This item is shown in the notice. The number of the cheque by which it was paid is 76838. He points out that this item of 28th March, 1946, should have appeared in the accounts stated in Ext. 2. It was a payment made admittedly in that year. It is true that this item does not appear in Ext. 2. Its receipt also is admitted. Plaintiff was given no opportunity to ex­plain this omission even. No specific statement was made in regard to this item by the defendant either. From account Ext. G put in by defendant it ap­pears that on 14th Chait goods worth Rs. 1,266-6-0 were received, and payment is made that day by cheque. The two entries of debit and credit indicate the possibility of a reasonable explanation for this omission. The payment was admittedly received. It did not appear in Ext. 2 if plaintiff had failed to ex­plain the omission on being furnished an opportunity, the statement of account relied on by the plaintiff could not have been taken as complete but in the absence of any such opportunity being offered to him the account admitted as correct (Ext. 2) by the de­fendant could not have been ignored or thrown out. No other objection was raised by the statement of account contained in Ext. 2. (31) The plea that no less than Rs. 45,000 were deposited towards the price of machinery parts from 22nd November, 1944, to 2nd January, 1945, was not raised in the written statement. At the trial defen­dant deposed that the liability of rupees sixtyone thousand arose from his second account which con­tinued in accounts G and H and was finally settled on 18th December, 1946. His case is that he did make demands and has produced copies of letters Exts. 6, 7 and 8. A sum of rupees sixtyone thou­sand was demanded on 20th October, 1948 (Ext. 6). His case is that he did make demands and has produced copies of letters Exts. 6, 7 and 8. A sum of rupees sixtyone thou­sand was demanded on 20th October, 1948 (Ext. 6). A sum of Rs. 1,25,000 was demanded by Ext. 7 dated 15-11-48 in part payment of what was due to him. By Ext. 8 dated 5-12-49 payment of two sums on two separate accounts was demanded. The suit was ins­tituted on 17th December, 1949. An attempt thus has been made to show that demands for payment of the amount due to defendants were made. Even this effort on the part of the defendant has not succeeded. The plaintiff denied having received these letters. When in the witness box defendant stated on cross-examination that he had tiled copies of these letters of demand, but he had nothing to show that these letters were received by the plaintiff:. He volunteered at that stage that these letters were posted under certificates of post­ing. There is no proof on the record that these let­ters were so posted. If posting of letters had been proved it might have been possible to presume that the letters were received. But there is no proof of posting much less of posting under postal certificates. No registered letter was sent on any occasion. Plaintiff's suit was instituted on the last day of limi­tation. He waited till the last moment. He and his withess Madanlal Goenka have deposed that defen­dant refused to execute even an acknowledgment a few days before the limitation was to expire. Whilst the defendant does not institute the suit in Decem­ber, 1949, when his limitation on the accounts stat­ed was to expire, plaintiff instituted the suit and bas­ed his claim on Exts. 2, and also 2 (1) executed by the defendant, even though Ext. 2 (1) was apparently in conflict with Ext. 2, the account in the Khata. The notice to admit payments was served on the plain­tiff on 30th May, 1950. It was on 5th April, 1951, that defendant had a notice sent to the plaintiff claiming Rs. 65,998 on the basis of the alleged depo­sits. But this account had been settled on 18th De­cember, 1946. The significance of the theory of deposit is indi­cated by the fact that the claim for this sum was be­ing made long after die period of three years had expired. 65,998 on the basis of the alleged depo­sits. But this account had been settled on 18th De­cember, 1946. The significance of the theory of deposit is indi­cated by the fact that the claim for this sum was be­ing made long after die period of three years had expired. When lexecuting Mabalakbandi the defen­dant did not state that the amount of rupees sixtyone thousand or part of it represented a deposit with the plaintiff. The other claim in the notice was of Rs. 1,11,418-12-0. This was claimed on the basis of joint milling business of 1948. Plaintiff denies that there was any joint milling business or there was anything due to the defendant on account of any joint business. An agreement Ext. 9 was executed by defendant on 11th January, 1948. By this agree­ment defendant who was the proprietor of the rice mill at Hojai agreed to a milling hire arrangement! with the plaintiff. In the agreement he disclosed that for want of funds he had not been able to run the business for himself. This was the reason why he entered into the milling hire arrangement. He was to charge the plaintiff As. 0-8-0 per maund of paddy milled by him. The running expenses of the mills were to be borne by him. It was stated expressly that the stock of paddy maintained by M/s. Dasuram Mirzamall, plaintiff will vest in them. He shall have no claim to it and that his creditors also will have no claim on the paddy or the rice or the products thereof. His mill had been mortgaged for a huge amount in fa­vour of the Pioneer Bank. These conditions were therefore necessary in the interest of the plaintiff. The milling charges were payable daily or week­ly according to demands. The arrangement was to continue upto 31st Chait 1354 B.S. There was no kind of partnership and no registered notice or de­mand even on this account was sent to plaintiff till long after the institution of the suit by him. The first registered letter containing demands on 2 ac­counts by the plaintiff was sent on 5th April, 1951, when the suit out of which this appeal arises had pro­ceeded a long way. The defendant did not make a counter-claim nor did he claim a set off. The first registered letter containing demands on 2 ac­counts by the plaintiff was sent on 5th April, 1951, when the suit out of which this appeal arises had pro­ceeded a long way. The defendant did not make a counter-claim nor did he claim a set off. He no doubt instituted two suits in August and September, 1951, but I find it extremely difficult to discover any good reason why defendant was waiting all this time to recover his .dues when he owed about rupees one lac, eightyfive thousand to the bank. The mill was the security for this advance. In 1.948 he was forced to enter into a milling arrange­ment with the plaintiff as he was short of funds. Still he keeps on making advances to the plaintiff who apparently has a far more extensive business than the defendant. He has no less than seven mills. His income-tax dues did reach the figure of four lakhs or so. Whilst defendant was in need of money plain­tiff was not in any such difficulty. (32) Defendant no doubt has made desperate efforts to show that he was a creditor. But he has signally failed to substantiate his plea that he was a creditor on 18th December to the tune of rupees sixtyone thousand. Evidence considered above leads irresistibly to the conclusion that defendant was a debtor and not the plaintiff. For reasons; given above I cannot rely on defendant's accounts, parti­cularly No. 2, even though he and his employee Pitabaisan Choudhury deposed that they kept ac­counts regularly. Even if relevant they do not prove that on the relevant date defendant was a creditor to the extent of rupees sixtyone thousand and not the plaintiff. They conflict with the account stated in Ext. 2 which was there before the Mabalakbandi was executed. The statement of account was agreed to and it was this agreement which was meant to be reduced into writing. The1 defendant executed the Mabalakbandi in a language which the plaintiff did not know. One of the witnesses of the defendant has stated that he has seen him reading or writing English but it is not possible to rely on this statement. The version which he came to support was improbable. The statement made was more so. The1 defendant executed the Mabalakbandi in a language which the plaintiff did not know. One of the witnesses of the defendant has stated that he has seen him reading or writing English but it is not possible to rely on this statement. The version which he came to support was improbable. The statement made was more so. If plaintiff, a businessman, with extensive busi­ness knew English he must have on numerous occa­sions utilised this knowledge, and it should have been possible to prove that fact by independent evi­dence of a more reliable character. Advantage was taken of the plaintiff's ignorance of the language. If the mistake had been discovered within time no com­plications could have arisen. Defendant evidently wanted to avoid institu­tion of the suit at that time. He executed the Maba­lakbandi representing that he was acknowledging his own liability. There is nothing improbable in the plaintiff not discovering the mistake till he sought legal advice for the institution of the suit. The insti­tution of the suit on the document as it stood by itself affords circumstantial evidence of the truth of plaintiff's version. (33) Defendant applied on 8th August, 1951, after he himself had been examined in Court for permission, to file a copy of his profit and loss account, which he alleged he had filed in the Nowgong In­come-tax Office. It is stated in the petition that a sum of rupees sixtyone thousand was shown as dues to him on 16th August, 1948. The learned Judge declined to take this statement in evidence at that stage. He thought it was not a public document within the meaning of the expression as defined in I the Evidence Act. He also was of the view that it was no more than an admission in favour of the de­fendant and as such was not admissible. Even if the statement of profit and loss was a public document, no confidence attached to it. It was a statement put in by the defendant and if he desired to produce that statement in evidence there was nothing in law to preclude him from producing or proving it. A certified copy would also be admissible as the statement would be a public document' as held in Venkata Gopala Narasimha Rama Rao v. Venkataramayya, AIR 1940 Mad 768 (FB) (A). A certified copy would also be admissible as the statement would be a public document' as held in Venkata Gopala Narasimha Rama Rao v. Venkataramayya, AIR 1940 Mad 768 (FB) (A). But the learned counsel has not made any attempt to show that the statement amounted to anything more than an admission in defendant's favour and was relevant. There was the additional fact that the defendant was putting this document at a very late stage of the case when he had himself made his own state­ment in Court. Defendant appears to have been fully aware of the contents of the Mabalakbandi and it would not be surprising if he entered in the profit and loss statement the fact that a sum of rupees sixtyone thousand was owing to him. I do not think defendant was entitled as of right to put in the docu­ment at that stage or that the Court acted improperly in the exercise of its discretion when refusing to admit the document tendered. In any case I am not at all convinced that any prejudice has been caused to the defendant by re­fusal on the part of the Court to allow the defen­dant to produce the certified copy of his profit and loss statement filed in his Income-tax case. I would add here that the order of the Court refusing permis­sion to the defendant to examine all the books of account of plaintiff before putting in his written statement has also not been shown to be wrong. De­fendant had no right to examine all books on which the plaintiff was not relying at that stage. He could only see the Khata on which the suit was based. The order of the Court in this regard also is not open to objection. (34) Intrinsic as well as extrinsic evidence bearing on the question as to who out of the parties was the creditor on 18th December to the extent of rupees sixtyone thousand has been all taken into consideration. The conclusion reached as stated above is that plaintiff was undoubtedly the creditor to that extent. The account contained in Ext. 2 re­presents correctly the position of the parties. The Mabalakbandi Ext. 2 (1) does not give expression to the agreement arrived at; nor does it bring out the arrangement between the parties. The writing was to be given by the defendant in favour of the plaintiff. The account contained in Ext. 2 re­presents correctly the position of the parties. The Mabalakbandi Ext. 2 (1) does not give expression to the agreement arrived at; nor does it bring out the arrangement between the parties. The writing was to be given by the defendant in favour of the plaintiff. He had to acknowledge his liability to the extent of rupees sixtyone thousand and that the amount would carry interest on that sum at the rate of three per cent. The writing contains all the true facts. But by a clever ruse an attempt has been made to fasten defendant's liability on the plaintiff. The words "to me" instead of "by me" have done the whole trick. The words in the Mabalak­bandi should have been "by me" instead of ''to me''. They would have expressed the whole of the arrange­ment between the parties correctly. (35) Defendant's claim that he is the creditor is too tall for words. His version is fictitious. It bristles with improbabilities. His whole conduct is unnatural wholly opposed to the normal behaviour of a creditor. He was heavily indebted to the Pio­neer Bank and was badly in need of money for car­rying on his business (vide Ext. 9) but he did not make any effort to recover his dues from the plaintiff. His facts are stranger than fiction. (36) All available extraneous evidence has been considered to reach the conclusions stated above. The question is whether any extraneous evidence could be considered for determining what was agreed to between the parties before the Mabalakbandi Ext. 2 (1) was executed by the defendant. S. 91 of the Evidence Act provides that ''when the terms of a contract, or of a grant or of any other! disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of terms of such contract, grant or other disposition of property, or of such matter, except the document it­self, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained." There are several exceptions to the rule so enun­ciated. But we are not concerned with them. But we are not concerned with them. S. 91 has the effect of excluding oral evidence of the terms of a contract, grant or other disposition of property when these terms have been reduced to the form- of a writing. If anyone wants to prove the terms of a document which falls within the purview of S. 91 he has to prove the terms by the primary evidence, the document itself. Secondary evidence of the contents may however be given where secondary evidence is admissible under the provisions contained in the Evidence Act. It is contended that the document it­self being the best proof of the terms, no oral evi­dence could be given. Oral evidence if given would contravene the prohibition contained in S. 91. S. 92 lays down that '''when the terms of any such contract, grant or other disposition of property or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in in­terest, for the purpose of contradicting, varying, add­ing to, or subtracting from, its terms:" An oral agreement thus may not be pleaded or proved to contradict, vary, add to, or subtract from the terms of any document falling under S. 91 when its terms have been proved as laid down therein. There are six provisos to this section. Under the first proviso "any fact may be proved which would in­validate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation illegality, want of due execu­tion, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.'' Under proviso No. 6 "any fact may be proved which shows in what manner the language of a docu­ment is related to existing facts.'' Mr. Lahiri has ar­gued that extraneous evidence would be admissi­ble to prove the real nature of the arrangement bet­ween the parties both under proviso 1 and proviso 6. It is urged that any fact which would invalidate the document could be proved and also any fact which would entitle the plaintiff to a decree or order relat­ing to the document. Lahiri has ar­gued that extraneous evidence would be admissi­ble to prove the real nature of the arrangement bet­ween the parties both under proviso 1 and proviso 6. It is urged that any fact which would invalidate the document could be proved and also any fact which would entitle the plaintiff to a decree or order relat­ing to the document. S. 31 of the Specific Relief Act is relied on for showing that the plaintiff could seek rectification of the document on the basis of mutual mistake or fraud. As fraud or mistake would entitle plaintiff to a decree under S. 31, Specific Relief Act, he could show by extraneous evidence that Ext. 1 twisted the facts so that the creditor was shown as the debtor. The relation between the language used in the docu­ment and the existing facts could also be brought out by extraneous evidence. The prohibition con­tained in S. 92 would not apply where proviso (6) came into operation. (37) S. 31 of the Specific Relief Act permits, rectification of instruments when through fraud or mutual mistake of the parties a contract or other instrument in writing does not truly express their intention. Either party may institute a suit and if the Court finds that there has been fraud or mistake in framing the instrument, it may ascertain the real intention of the parties in executing the same and may at its discretion rectify the instrument so that it may express that intention. (38) The section in terms applies not only to contracts by other instruments in writing. The word 'instrument' has not been defined in the Specific Re­lief Act. Its definition in S. 2 (14), Stamp Act would include "every document by which any right or lia­bility is, or purports to be, created, transferred, limi­ted, extended, extinguished or recorded." Even if the expression 'instrument' is given its ordinary meaning, there would be no justification for excluding an ack­nowledgment falling under S. 19 of the Limitation. Act from the operation of the section. A mistake about figures, description of property or of names in an acknowledgment may be rectified under S. 31, Specific Relief Act. The learned counsel for the appellant did con­tend that S. 31 would not apply to an acknowledg­ment but he has not been able to support his conten­tion by anything from the statute, precedent or au­thority. If therefore Ext. A mistake about figures, description of property or of names in an acknowledgment may be rectified under S. 31, Specific Relief Act. The learned counsel for the appellant did con­tend that S. 31 would not apply to an acknowledg­ment but he has not been able to support his conten­tion by anything from the statute, precedent or au­thority. If therefore Ext. 2 (1) failed to record the arrangement accurately, its rectification would be possible under S. 31 if its conditions are satisfied. The equitable jurisdiction of the Court under S. 31, Spe­cific Relief Act could be invoked by the plaintiff for obtaining a decree for rectification of the mistake on the basis of fraud or mistake. S. 92 does not exclude evidence in proof of fraud, or mutual mistake, when read with section 31 of the Specific Relief Act. Oral or extraneous evidence in proof of fraud or mutual mistake may be given for obtaining a decree for rectification of a document where rights of third parties are not affected. In Ma-hendra Nath Mukherjee v. Jogendra Nath Roy Chaudliury, 2 Cal WN 260 (B), it was held that "it was open to the Court having regard to proviso 1 to S. 92 of the Indian Evidence Act, to allow oral evi­dence to be put in to prove the mutual mistake." It was further held that "where there is a mutual mistake of fact in a case, as here, a court administering equity will interfere to have the deed rectified, so that the real intention of both parties may be carried into effect, and will not drive the defendant to a separate suit to rectify the instrument." In this case the suit was on the basis of a conveyance. The de­fence was to the effect that what was intended to be sold and purchased was the revenue paying estate of the defendant. But the land in suit, the home­stead of the defendant though found included in the estate was not expressly exempted, because both the parties were under the mistaken impression that it was not so included but was Lakhiraj. The defendant was permitted to show the real intention behind the conveyance and to have it .given effect to without a suit for rectification of the document. The defendant was permitted to show the real intention behind the conveyance and to have it .given effect to without a suit for rectification of the document. In Asitulla v. Sadatulla, 28 Cal LJ 197; (AIR 1918 Cal 809) (C), it was held that "title may be established without rectification of an instrument, even though the time to secure a rectification of the instrument has elapsed, and that it is open to a party to give evidence to prove that his name has been omitted from the document by fraud or mis­take." The case of the plaintiffs was that they along with defendants 1 and 8 purchased the dis­puted property from the proprietors but by fraud of the first defendant plaintiff's name had been omitted as one of the purchasers from the docu­ment. The suit was for declaration of title and for pos­session. Oral evidence was permitted to be adduc­ed to show plaintiff's title under S. 31 of the Specific Relief Act. The decision in 2 Cal WN 260 (B) was relied on. In this case the suit for rectification had become barred. The view that prevailed was that no advantage would be gained if the parties were driven to a separate suit for rectification to be fol­lowed by a suit for possession on the strength of rec­tified instrument. Several other decisions support­ing this view were referred to. In Ladha Singh v. Munshiram Agarwalla, AIR 1927 Cal 605 (D), the suit was on a promissory note in which interest was said to be payable at the rate of "one per cent, per annum". Plaintiff's case was that this was due to inadvertence. What was meant was "one per cent, per mensem". Costello, J., held that the Court could correct the terms of a document if it was proved to the satisfaction of the Court that any of such terms was inaccurate owing to a mutual mistake. It could, according to him, also correct a misstatement in a promissory note if in fact' a term had been placed in the note without really representing the true bar­gain between the parties. He did not insist on a separate suit for the rectification of the document and proceeded to decide the matter on the basis that there was a mutual mistake and that it was open, to the Court to ascertain what the real contract be­tween the parties was. He did not insist on a separate suit for the rectification of the document and proceeded to decide the matter on the basis that there was a mutual mistake and that it was open, to the Court to ascertain what the real contract be­tween the parties was. (39) A document may not bring out the true in­tention of the parties. The arrangement orally made when reduced to writing may not be accurately re­produced. The error in the document may be due to mutual mistake, it may be just an unintentional clerical slip due to oversight or inadvertence. It may have been introduced into the document de­signedly with a view to defraud. In all such cases it is open to the Court in its equitable jurisdiction under S. 31 of the Specific Relief Act to give effect to the real intention of the parties or the arrange­ment arrived at by agreement between them before it is reduced into writing. It is necessary that fraud or mutual mistake must be proved before rectification is possible. Another condition of relief under S. 31 is that the rights of third parties be not affected. Subject to these limitations rectification of the document is possible. It is however not necessary to invoke speci­fically the equitable jurisdiction of the Court in cases of mere slips and omissions which are obvious on the face of writing and may be corrected by the context alone and are corrected by the Court in the process of construction. The document may be construed as if the verbal slip or omission was not there. A suit or even a prayer in a suit for rectification would not be necessary in such a case. It is worthy of note that Courts in the exercise of jurisdiction under S. 31 do not rectify contracts. They merely rectify the instrument which fails to give effect to the inten­tion of the parties. Therefore it would be necessary for a plaintiff to show that there was an actual con­cluded contract antecedent to the instrument which is sought to be rectified and that such a contract is' inaccurately expressed in the instrument. I have come to the conclusion that the writing Ext. 2 (1) does not correctly bring out what was agreed upon between the parties. Its rectification therefore is possible under S. 31, Specific Relief Act provided its conditions are satisfied. I have come to the conclusion that the writing Ext. 2 (1) does not correctly bring out what was agreed upon between the parties. Its rectification therefore is possible under S. 31, Specific Relief Act provided its conditions are satisfied. (40) The claim is for money. No property is involved. No rights of third parties would be affect­ed by rectification of the document in question. But before jurisdiction under S. 31 may be exer­cised it has to be found whether the inaccurate ex­pression in the document was due to mutual mis­take or a fraud. (41) If the document Ext. 2 (1) had been written as it stands now by the plaintiff and it had only been signed by the defendant the writing would have been in conformity with the Khata account and there would have been no conflict or error. It would have been a plaintiff's statement that so much is due to him and that interest on it would be calculated at the given rate. If such a writing had been sign­ed by the defendant no difficulty would have arisen. Actually the writing is in the hand of the defendant. It is possible to agree that at the time of writ­ing he put himself in the position of a plaintiff as the writing was to be on his Khata. It may not have been realized that the writing by the defendant as though it was by the plaintiff would produce an effect wholly contrary to the one intended. Plain­tiff did not know English and could not discover the mistake. Plaintiff's statement on the point that he does not know English is difficult to discard. A person with the magnitude of his business must have used English on numerous occasions if it was known and it should have been possible for defendant to prove that by evidence of an incontrovertible cha­racter. Defendant's evidence on the point is most un­convincing and unimpressive. Some possibility of an initial mutual mistake in these circumstances may possibly exist. But it can be no more than a very distant possibility. The probabilities of the situation are that the defendant deliberately altered the oral arrangement when reducing it to writing and decid­ed to use it for a sinister purpose. His whole atti­tude after the execution of this document points an intent to defraud. But it can be no more than a very distant possibility. The probabilities of the situation are that the defendant deliberately altered the oral arrangement when reducing it to writing and decid­ed to use it for a sinister purpose. His whole atti­tude after the execution of this document points an intent to defraud. Taking him for a debtor as he has been found to be, it should have been in his interest to give a fresh acknowledgment to the plaintiff to avoid the contingency of a suit. A small pay­ment could have been made for extending limitation. Plaintiff's case is that he tried to obtain an acknowledgment but he failed. The defendant did not make any payment, nor did he try to obtain an extension of the period of limitation. This attitude would be consistent with a decision on his part to utilise Ext. 2 (1) for showing that he was a creditor and also in support of a plea of limitation. But he could not fail to realize that the writing by itself being in his hand and signed by him was no more than an admission in his favour, and in order that it should serve his purpose it would need support from independent evidence. The plea that he was a creditor could not succeed on that writing alone which was in his own hand. He therefore came out with two accounts, one account supporting the defence that he was a creditor to the extent of rupees sixty-one thousand. His employee Pitabasan Choudhury (D. W. 5) de­posed that the accounts were regular. He however did not support any particular item of account from personal knowledge. The defendant examined 3 other witnesses to show that on a settlement of ac­counts rupees sixty-one thousand was found due to him. Even copies of alleged letters of demand were produced and it was claimed that they were post­ed under certificates of posting. All this evidence bears unmistakable signs of fabrication. It had to be cooked up to support a false and a baseless writing. This has been discarded but there is no gainsaying the fact that the defendant succeeded in making the contest on the question of liability look serious. All this forcibly suggests a continuing fraudulent purpose. All this evidence bears unmistakable signs of fabrication. It had to be cooked up to support a false and a baseless writing. This has been discarded but there is no gainsaying the fact that the defendant succeeded in making the contest on the question of liability look serious. All this forcibly suggests a continuing fraudulent purpose. His refusal to re­new the debt or to make a demand if anything was due to him both point to the conclusion that he was fully aware of the contents of Ext. 2 (1) and he had decided to make full use of them. In view of all this evidence it is difficult to resist the conclusion that it was not mistake so much as fraud that prompt­ed the form which Ext. 2 (1) was given. The writing brought about a complete perver­sion of the original agreement. It produced an effect different from that which the parties intended to have. All this was done by clever device. Ext. 2 (1) therefore must be rectified so as to give effect to the true intention of the parties and the real arrange­ment made between them. (42) The learned counsel for the appellant has argued that fraud was not pleaded. He has referred us to the provisions of the Civil Procedure Code which prescribe in clear terms that fraud must be specifically pleaded. It is also enjoined that parti­culars of the fraud should be supplied. This evi­dently was not done. The provisions of the Civil Procedure Code in this regard no doubt have not been complied with. The plaintiff deposed when giving evidence that he discovered the error in Ext. 2 (1) about two days before the institution of the suit. His learned counsel has explained that it was no more than plaintiff's inference from the conduct of the defendant. The definite plea about mistake or fraud was not possible since plaintiff could not take up a definite position about the attitude of defendant's mind at the time of the institution of the suit. He may have entertained the hope that the defendant may not take advantage of the false or the incorrect writing. There is some force in the con­tention that it was difficult for the plaintiff to decide which position to take. But he could certainly have pleaded mistake or fraud in the alternative. Even this was not done. He may have entertained the hope that the defendant may not take advantage of the false or the incorrect writing. There is some force in the con­tention that it was difficult for the plaintiff to decide which position to take. But he could certainly have pleaded mistake or fraud in the alternative. Even this was not done. The omission however can­not be regarded as fatal to the suit. The allegation that plaintiff was a creditor was very definitely made. This would imply that there was an error in Ext. 2 (1). The error in it is neces­sarily implied in the plaintiff's case as laid. The cause of the error was not shown till plaintiff came into the witness box. Defendant had ample opportu­nity of meeting the case so set up though at a rather late stage. In fact he was fully prepared for it. He had all the material ready which he wanted the Court to consider on the question of his plea that he was a creditor. The defendant produced his ac­counts, his direct evidence about the alleged admis­sion and the liability of the plaintiff. Attempts were also made to prove demands. All possible evidence that he had was thus produced. Plaintiff explained how the fraud came to be perpe­trated. It was his ignorance of the language that was taken advantage of. Defendant also gave evi­dence on that point. The issue thus was fully tried between the parties, both sides produced all evi­dence on that point. The issue thus was fully tried be said to have been taken by surprise. In these circumstances there is nothing to prevent the Court from considering evidence bearing on how the fraud was committed and what is the true relationship be­tween the parties. The omission to pray for rectification of the document is also not fatal. Decisions referred to above 28 Cal LJ 197: (AIR 1918 Cal 809) (C) and 2 Cal WN 260 (B), support the proposition that an instrument may be rectified when the error has been clearly brought to light and is due to fraud or mis­take even though the plaint does not specifically include any prayer for rectification. I think in a situation like this a Court vested with equitable jurisdiction should not refuse relief on the ground of any procedural omission which could not cause any prejudice. I think in a situation like this a Court vested with equitable jurisdiction should not refuse relief on the ground of any procedural omission which could not cause any prejudice. (43) A suit for rectification would have been within time from the date of the document i.e. Exts. 2 and 2 (1). In 28 Cal LJ 197: (AIR 1918 Cal 809) (C), it was held that relief for possession on declaration of title could be granted on rectifying the instrument even when a suit for rectification had become time barred. In this case plaintiff's suit for rectification was not barred when this suit was insti­tuted. Failure to obtain a rectification of the docu­ment before instituting the suit and the omission to ask for relief do not preclude the Court from giving effect to the real arrangement of the parties by read­ing into it just what was intended. (44) The first part of the document, the account in the Khata clearly shows the defendant to be liable. The last entry on the debit side shows that some interest was added. Ext.' 2 (1) read correctly by substitution of the words ''due by me" instead of "due to me" would show that the entire transaction embodied in a writing was not a mere acknowledg­ment of liability. Ext. 2 (1) contained the recital that interest would be calculated at six per cent. There is an implied promise to pay both principal and interest. It did not take the form of a promissory note but the implied agreement to pay the amount due is there. The calculation of the interest means nothing less than this that interest would be paid at. that rate. The two parts of the document taken as a whole bring out an agreement to pay the amount which was found due with interest at the stipulated rate. It was more an agreement than a mere acknowledgment. In Hiralal ' v. Badkulal, AIR 1953 SC 225 (E), defendant Hiralal had dealings with the plaintiffs and signed an entry in plaintiff's Khata on which earlier mutual accounts had been entered. The entry was to the following effect: Rs. 34,000 balance due to be received up to Bhadon sudi 11 Sam. 2006 made by check and understanding of accounts with Hiralal's books." The acknowledgment was signed by Hiralal with the following endorsement. "After adjusting the accounts Rs. The entry was to the following effect: Rs. 34,000 balance due to be received up to Bhadon sudi 11 Sam. 2006 made by check and understanding of accounts with Hiralal's books." The acknowledgment was signed by Hiralal with the following endorsement. "After adjusting the accounts Rs. 34,000 found correct and payable." It was a mere admission of liability. There was no agreement to pay interest. There was no interest clause. It was held by their Lordships of the Supreme Court that "the unqualified acknowledg­ment contained in the entry and the statement of accounts under which the entry was made were sufficient to furnish a cause of action to the plain­tiff for maintaining the suit. Truly speaking, the suit was not based merely on the acknowledgment but was based on the mutual dealings and the ac­counts stated between them and was thus clearly maintainable." This case is on' all fours with the present case. In the view which prevailed with their Lordships of the Supreme Court, there can be no manner of doubt that this suit was maintainable on the docu­ment consisting of the two parts. Plaintiff therefore must be held to have a cause of action for the suit. The document in suit could form the foundation of the claim and a decree could be based on it unless the defendant could show that the document was vitiated by mistake or fraud. Defendant's plea that the Khata account at the top was not there has not prevailed. His evidence in defence that he was the creditor has not been relied upon. There was no mistake or fraud against the defendant which would entirely vitiate Ext. 2 or Ext. 2 (1). Defendant himself realised this. He did not seek the invalidation of Ext. 2 (1). . He was merely opposing rectification. The two documents having been proved supply a valid basis for a decree with the necessary rectification of Ext. Z (1). They need not be supported by any previous account. Plain­tiff was not under any necessity to prove his previous account or its regularity. Nor was there any need of corroborating entries in the previous account as required by S. 34, Evidence Act. The suit as laid was maintainable without any doubt. Z (1). They need not be supported by any previous account. Plain­tiff was not under any necessity to prove his previous account or its regularity. Nor was there any need of corroborating entries in the previous account as required by S. 34, Evidence Act. The suit as laid was maintainable without any doubt. The defendant executed the Mabalakbandi though contrary to the intention of the parties but despite this the plaintiff is entitled to a decree on the two entries read in the light of the finding arrived at as to the real in­tention of the parties, (45) The suit is not barred by limitation. It is admittedly within limitation if it could be founded on the documents in suit. This is what we have found. If the suit had been on Ext. 2 (1), if the Khata entries at the top had not existed and Ext. 2 (1) could be regarded as merely an acknowledgment for purposes of S. 19, it would have been necessary for the plaintiff to show that it was made within three years from the date when the original liability had arisen. Plaintiff did not make any attempt to prove this. But defendant has produced all his relevant accounts. These accounts begin from 18-9-1944 (1351 B. S.). If all relevant account's have been put in, ac­counts which were necessary for the defendant's plea of limitation should also have been put in. It could not be said that relevant accounts only on a certain issue were produced. This was not the de­fendant's case. He stated that he had submitted the relevant portions of his accounts with the plain­tiff and in this connection he referred to Exts. E, F, G, H. Having raised the plea of limitation if he had accounts which would show that the claim or any part of it was barred by time, he would not have withheld that portion. If accounts commenced from the date shown by accounts produced by defendant Ext. 2 (1) must be deemed to have been executed at a time when the claim even on original liability had not become barred. The learned counsel for the appellant has referred to the statement of the plaintiff in cross-examination to the effect that defendant's transactions were of probably Sambat 2000 or 2001. The account was-settled in December, 1946 in Sambat 2002. The learned counsel for the appellant has referred to the statement of the plaintiff in cross-examination to the effect that defendant's transactions were of probably Sambat 2000 or 2001. The account was-settled in December, 1946 in Sambat 2002. Even if the accounts started somewhere in Sambat 2000 not even a part of the liability would necessarily have been barred by limitation. It is extremely un­likely that plaintiff would have allowed a claim of rupees sixty-one thousand to become barred. He would either have obtained an acknowledgment or he would have instituted a suit. Defendant himself went to plaintiff uninvited, settled the account and executed Ext. 2(1). I have no reason to think in the circumstances that Ext. 2 (1) was executed at a time when any part of the-claim had become time barred even if it is assumed for purposes of argument that Ext. 2 (1) was intend­ed or meant to serve as a mere acknowledgment and the Khata entries above did not exist at the time. On the finding I have arrived at on the merits of the controversy, the question of limitation does not arise. (46) There was an issue as to the jurisdiction ok the Court. It was not seriously pressed. I have agreed with the learned Sub-Judge that the state­ment of defendant and his witnesses that he was a creditor and a sum of rupees sixty-one thousand was due to him cannot be relied on. Their assertion that! the accounts were settled at Hajo in the mill of the defendant is equally unreliable. The circumstantial-evidence gives the lie to defendant's version on, this point also. If accounts had been settled at Hajo-and defendant was the creditor according to the ac­counts, the entry must have appeared in the books-of the defendant which were there and not in the Khata of the plaintiff. That single circumstance tilts, the scales rather heavily in favour of the plaintiff. The Court no doubt had jurisdiction. (47) The result of the foregoing discussions is that this appeal must fail and is dismissed with costs. (48) SARJOO PROSAD, C. J.M entirely agree, All shades of the questions raised or involved in this-appeal have been carefully and elaborately consider­ed by my learned Brother, and I have little to add to the judgment just pronounced. (47) The result of the foregoing discussions is that this appeal must fail and is dismissed with costs. (48) SARJOO PROSAD, C. J.M entirely agree, All shades of the questions raised or involved in this-appeal have been carefully and elaborately consider­ed by my learned Brother, and I have little to add to the judgment just pronounced. The Defendant sought to take advantage of an apparent clerical error in the Moblakbandi written and signed by him on Stamp in English on Plaintiffs Khata, the Moblak­bandi being the foundation of the claim. I am convinced that the error was not simply due to any mutual mistake "of the parties, but, as discovered by subsequent events, is attributable to a deliberate fraud on the part of the Defendant. On resting facts, both intrinsic and extrinsic, the patent artifice was, however, too thin to -escape detection, and the Court below was right in re­jecting his manifestly dishonest plea and in de­creeing the suit. The judgment and decree under appeal must, therefore, be confirmed. H.G.P. Appeal dismissed.