JUDGMENT N.U. Beg, J. - This is an appeal by a firm Jagatnarayan Durgaprasad. The appellant was the plaintiff in the trial court. The appellant had brought the present suit on the allegation that it was a firm which carried on bullion business as Pacca Arhatya at Nayaganj, Kanpur. 2. The plaintiff's case was that the defendants had entered into a contract with it whereby they had appointed the plaintiff as their agent for doing business in the purchase and sale of bullion, that the defendants had agreed to pay Arhat at the rate of -|8|- per bar of silver, interest at -|10|- percent. per mensem on account of Dalali, -|14|- per bar of silver and -|8|- per bar of silver towards the chamber expenses. According to the plaintiff's case, a large number of transactions were entered into between the parties as a result of the aforesaid contract and a total amount of Rs. 2373|14|- was due to the plaintiff from the defendants by way of principal and interest in respect of the said transactions. As the defendants had failed to make the said payment, in spite of a notice to that effect, the plaintiff had brought the present suit for the recovery of the same. 3. The suit was contested by the defendants on a number of grounds. The main ground was that the contract entered into between the parties was of a wagering nature and was, therefore, bad in law. 4. Both the courts below accepted the defendant's plea in this regard. They held the contract in question to be of a wagering nature and accordingly dismissed the plaintiff's suit. 5. At this stage of second appeal, the same plea is sought to be reagitated before me on behalf of the plaintiff-appellant. I might state at the very outset that so far as the legal position is concerned, it does not admit of any doubt. The crucial question that arises for decision in cases of this nature is whether, when the parties initially entered into the contract, it was their real intention to bring about effective commercial transactions which would result in the delivery of goods, or they merely intended to effect paper entries with a view to ascertain profits and losses accruing in the transactions in favour of or against the parties to the contract. Whether delivery was actually made in the transactions entered into by the parties cannot be considered to be the final test. It can, however, be taken into consideration as a piece of subsequent conduct and as throwing light on the initial intention of the parties. For the purpose of determining the initial intention, the court has to look into the evidence of the parties and to all the circumstances surrounding the transactions coupled with the conduct of the parties. The court need not be led away by the ostensible phraseology or the expression used by the parties. The purpose of the court is to get at the real intention of the parties entering into the contract for the purpose of ascertaining whether its real object was of a wagering nature. 6. In the present case, it might be mentioned that both the parties had adduced positive evidence in support of their respective cases. There was, on the one hand, the evidence adduced by the plaintiff to prove its case that the initial contract entered into between the parties was not of a wagering nature and that actual delivery was intended to be given by virtue of the terms of the said contract. On the other hand, the defendants also adduced evidence in support of their case in order to prove that no delivery was intended to be given and the transactions were of a wagering nature. In support of their case, one of the defendants himself also appeared in the witness-box. In examination-in-chief he stated that his regular business did not consist of dealings in bullion or silver bars at all. He was in fact a dealer in acids, and that, when the plaintiff had approached him, he had made it clear that, for the above reason, it was not possible for him to enter into any such contract. The plaintiff, however, re-presented to him that no actual delivery would be necessary as a result of the contract in which they were entering. This was stipulated between them from the very beginning. The plaintiff had further told him that only differences in the price would have to be worked out for the purpose of ascertaining the rights and liabilities of the parties. He had, accordingly, entered into this contract. This was stipulated between them from the very beginning. The plaintiff had further told him that only differences in the price would have to be worked out for the purpose of ascertaining the rights and liabilities of the parties. He had, accordingly, entered into this contract. He further stated very clearly in his examination-in-chief that from the very beginning it was settled between the parties that no actual delivery was to be made and so no delivery was actually given. 7. The lower appellate court has believed this part of the defendant's case. It has also relied on the defendant's evidence in this regard. The lower appellate court has also adverted to another important and relevant circumstance in this connection. It has referred to the fact that although the transactions between the parties are large in number and range over a fairly long period, in spite of it there was not a single instance of any delivery being given in any of these transactions. It has also referred to the fact that the regular business of the defendants was not bullion business at all. Relying on this and a number of other circumstances, the lower appellate court came to the conclusion that the defendants had succeeded in proving their case that the initial intention of the parties was not to give effect to the transactions by giving delivery of the goods in respect of which orders were placed. At this stage of second appeal, I am of opinion that this finding has become a finding of fact which is binding on me. 8. Learned counsel for the appellant has placed strong reliance on a statement made by the defendant no. 1 in cross-examination. It is to the following effect:- "There was no outstanding transaction on the due date. Generally the sales and purchases were equalised daily. I did this to avoid delivery on the due dates." 9. From the above statement the learned counsel argued that delivery was intended to be given. No doubt, this is one of the possible ways of interpreting this piece of evidence. Interpreted in this way, this statement of the defendant would contradict the evidence given by him in his examination-in-chief. I did this to avoid delivery on the due dates." 9. From the above statement the learned counsel argued that delivery was intended to be given. No doubt, this is one of the possible ways of interpreting this piece of evidence. Interpreted in this way, this statement of the defendant would contradict the evidence given by him in his examination-in-chief. On the other hand, it can also be argued that the intention of the defendant in making the statement was not to controvert the position which he had taken in his examination-in-chief, but that he had only meant to say that the method of setting off daily transactions was only a procedure to give effect to the initial intention not to make deliveries at all. The lower appellate court has put the latter interpretation on his above statement. If this interpretation is put, then it cannot be said that this statement contradicts the statement made by him in examination-in-chief. On the other hand, it is capable of being made consistent with it. It is not possible for me to say that the reasoning of the lower appellate court in this regard is perverse, unreasonable or improper. On the other hand, I am of opinion that the reasoning of the lower appellate court in this regard appears to be a just and a fair one. The statement of a party is to be read as a whole. If it is possible to reconcile the statement of the defendant in cross-examination with his statement in examination-in-chief, then I am of opinion that it would be a preferable mode of interpreting his evidence. In any case, it appears to me that the finding in this regard has now become a finding of fact, and it is not possible to revive or reagitate it at this stage, nor is it within my jurisdiction, sitting in second appeal, to reopen the matter. 10. The next argument of the learned counsel for the appellant was that the lower appellate court was wrong in holding that the question of the burden of proof was immaterial. It is, no doubt, correct that the question of the burden of proof is of overwhelming importance when the case is going on in the trial court for the purpose of determining as to which party is to lead evidence and which party is to have the right of rebuttal. It is, no doubt, correct that the question of the burden of proof is of overwhelming importance when the case is going on in the trial court for the purpose of determining as to which party is to lead evidence and which party is to have the right of rebuttal. The question of the burden of proof might also be of importance if any party has not led evidence in the case. It might also be of importance if the evidence led in the case is equally balanced. It does and should make a difference in the approach of the case made by the court. Where, however, positive evidence is clearly led by the parties on both sides in respect of their respective cases, and the court has come to a definite conclusion as to which evidence is correct, I am of opinion that the question of the burden of proof loses its importance and becomes merely a hypothetical question having only academic importance. In the present case, as I have already observed, the lower appellate court has believed the defendant's evidence and has disbelieved the plaintiff's evidence. Under the circumstances, I am of opinion that this argument cannot go very far to help the plaintiff-appellant. 11. No other argument was advanced. 12. For the above reasons I am of opinion that there is no substance in this appeal. I, accordingly, dismiss it with costs. 13. Leave to appeal to a Division Bench is refused.