Judgment : 1. The following points arise for a decision in these appeals arising from the common judgment and decree of learned Sub Judge, Mavelikkara in O.S.Nos.8 of 1990 and 54 of 1991. (i) Whether the trial court was right in proceeding on the basis that when payment is made as per two cheques, it is for the appellant to prove that it was not by way of loan? (ii) Whether the finding entered by the trial court as regards the loan transaction is legally correct and supported by evidence? (iii) Whether the finding entered by the learned Sub Judge that there was no joint business between the appellant and the respondent is legally correct? 2. Respondent in A.S.No.317 of 2002 filed O.S.No.8 of 1990 for recovery of money on the allegation that the appellant is a dealerin copra business and borrowed Rs.25,000/- from him on 06.01.1988 and Rs.15,000/-on 18.02.1988. The said amounts were paid to the appellant by way of two cheques which were encashed by the appellant in due course of time. Appellant did not repay the amount due and hence O.S.No.8 of 1990 for recovery of the said amounts with interest. 3. Appellant denied that there was no loan transaction on 06.01.1988 or 18.02.1988. He claimed that he had joint copra business with the appellant from 25.11.1987 to 19.04.1988. Since the respondent withdrew from the joint business, accounts were settled and amounts were due to the appellant. For repayment of part of the said amount, respondent issued cheques dated 06.01.1988 and 11.8.1988. A further sum of Rs.42,630/-was also due from the respondent. 4. Appellant filed O.S.No.54 of 1991 for realisation of the said sum of Rs.42,630/- with interest. Respondent resisted that suit denying that there was any joint business. He asserted that the appellant borrowed amounts as claimed in the plaint in O.S.No.8 of 1990. 5. Learned Sub Judge recorded evidence in O.S.No.8 of 1990. Respondent gave evidence as PW1 and testified to his case. He proved Exts.A1 to A5 (it is not clear whether Ext.A5, document was actually marked in evidence as there is no mention of that document either in the appendix of the judgment or the A diary). Appellant gave evidence as DW1 and examined Dws.2 and 3 to prove the (alleged) joint copra business with the respondent. Exts.B1 to B6 were also proved. 6. Appellant gave evidence as DW1 and examined Dws.2 and 3 to prove the (alleged) joint copra business with the respondent. Exts.B1 to B6 were also proved. 6. Learned Sub Judge observed that when payments are made as per cheques (dated 06.01.1988 and 18.02.1988) it was for the appellant to show that it was not by way of loan but, payments were made towards amount due in the joint business. No such evidence is adduced by the appellant. Learned Sub Judge was also not impressed by the documents the appellant produced. Learned Sub Judge found that the alleged joint business is not proved and that the appellant borrowed the amount from the respondent as pleaded in the plaint in O.S.No.8 of 1990. A decree was passed in favour of respondent in O.S.No.8 of 1990 and O.S.No.54 of 1991 was dismissed. A.S.No.317 of 2002 arises from the judgment and decree in O.S.No.8 of 1990. A.S.No.318 of 2002 arises from the dismissal of O.S.No.54 of 1991. 7. Learned counsel for the appellant has contended that findings entered by the learned Sub Judge on the issues involved are erroneous. It is argued that there was no good reason not to accept the evidence of DWs.1 to 3 and the documents produced by the appellant. According to the learned counsel, Ext.B1 which is a passbook issued in the joint names of the appellant and the respondent, which fact that respondent when examined as DW1 has admitted would show that there was joint business between the respondent and the appellant. It is argued that Ext.B3, account book of the joint business was discarded by the trial court for flimsy reason that it does not contain the hand writing of the respondent. 8. Learned counsel for the respondent has contended that learned Sub Judge was right in concluding that there is no evidence of joint business between the respondent and the appellant. It is also argued that circumstances go against the plea of joint business. Learned counsel points out that Exts.A1 and A3, reply notices dated 21.12.1989 came from the appellant after (alleged) settlement of the (alleged) joint business on 19.04.1988 but, there is no mention in Exts.A1 and A3 about any amount being due to the appellant. It is argued that if any such amount was due to the appellant in the joint business, that fact would have been mentioned in Exts.A1 and A3. It is argued that if any such amount was due to the appellant in the joint business, that fact would have been mentioned in Exts.A1 and A3. It is further argued that if the cheques dated 06.01.1988 and 18.02.1988 were issued for payment of the amount due in the joint business, in the normal course, those cheques would have been encashed through Ext.B1, account. But, Ext.B1, account shows that it was opened in December, 1987 and thereafter, there was only a deposit of Rs.10,000/-on 08.12.1987 out of which Rs.9800/-was withdrawn on 02.01.1988 and 02.02.1988. It is argued that appellant has not produced any evidence to show that there was any joint business. Reliance is placed on Ext.A5, said to be a receipt issued by the appellant in favour of the respondent and his wife on 28.05.1988. 9. I am inclined to think that learned Sub Judge has proceeded on a wrong assumption as regards burden of proving nature of transaction covered by the cheques dated 06.01.1988 and 18.02.1988. It is not disputed that payments of Rs.25,000/- and Rs.15,000/-was made to the respondent as per cheques dated 06.01.1988 and 18.02.1988. In view of the decisions in Ramachandran Vs. Velayudhan ( 1986 KLT 647 ) and Muhammedkutty Vs. Abdulla ( 2002(1) KLT 669 ) I am inclined to say that payment as per cheques is prima facie evidence of discharge of an existing liability. In the circumstance, the view taken by the learned Sub Judge that the appellant was obliged to prove that amounts paid to him as per cheques dated 06.01.1988 and 18.02.1988 were loan transaction is not correct. 10. Ext.B1 is the passbook in the name of the appellant and the respondent. That account was opened in December, 1987. True that only a sum of Rs.10,000/- was deposited in that account on 08.01.1988 out of which Rs.9800/- was borrowed on 02.01.1988 and 02.02.1988. PW1 admitted that Ext.B1 is the passbook in the name of himself and the appellant. But, from that statement alone I am unable to say that respondent/PW1 is a party to the application based on which Ext.B1, passbook was issued. It was appropriate that the appellant summoned the application based on which the joint account was opened and Ext.B1, passbook was issued. But, from that statement alone I am unable to say that respondent/PW1 is a party to the application based on which Ext.B1, passbook was issued. It was appropriate that the appellant summoned the application based on which the joint account was opened and Ext.B1, passbook was issued. If by appropriate evidence it is shown that it was based on a joint application moved by the appellant and the respondent that the joint account was opened, having regard to the fact situation in the case the respondent had an obligation to explain under what circumstance a joint account was opened. 11. No doubt Ext.B3, account book is not in the hand writing of the respondent. But, for that reason alone Ext.B3 cannot be ignored if other circumstances probabilise joint business. Of course, Ext.B3 by itself which does not contain the signature or hand writing of the respondent may not be sufficient. 12. Learned counsel for the appellant has pointed out that Ext.B3(a) (page 7 of Ext.B3) refers to the two cheques mentioned in the plaint in O.S.No.8 of 1990. But, the question whether those entries could be accepted as evidencing joint business depends on the larger question whether Ext.B3 could be relied upon. 13. True that in Exts.A1 and A3, reply notices dated 21.12.1989 there is no mention of the amount if any due to the appellant. But, I find from Exts.A1 and A3 that there is mention about the joint business of the respondent and the appellant and that appellant has spent much amount in the joint business. There is also mention about settlement of the account in the joint business. 14. Though the appellant had examined DWs.2 and 3, I find that learned Sub Judge has not even considered their evidence. Evidence of PWs.2 and 3 were sidelined for no valid reason. 15. Ext.A5 is a document which the learned Sub Judge has relied upon to say that payments as per the two cheques referred to in the plaint in O.S.No.8 of 1990 is a loan transaction. Ext.A5 is dated 28.05.1988 and purports to say that the appellant had borrowed certain amount from the respondent and his wife and that the said amounts will be paid before 27.05.1989. 16. Ext.A5 is dated 28.05.1988 and purports to say that the appellant had borrowed certain amount from the respondent and his wife and that the said amounts will be paid before 27.05.1989. 16. Learned counsel for the respondent has an argument that if actually amount was due to the appellant on settlement of the account on 19.04.1988, there was no reason why the appellant issued Ext.A5. 17. But, I must notice that Ext.A5 is not admitted by the appellant. It is seen from the judgment under challenge that learned Sub Judge found in favour of due execution of Ext.A5 merely by a comparison of the disputed signature in Exts.A5 with the admitted signature of the appellant by naked eye examination. Whether such a finding, without expert opinion could have been entered is also a matter which the learned Sub Judge has to decide afresh. 18. Learned Sub Judge further observed that joint account (Ext.B1) is not pleaded by the appellant either in the written statement in O.S.No.8 of 1990 or the plaint in O.S.No.54 of 1991. I am inclined to think that production of Ext.B1 is as an item of evidence in favour of the appellant. It is settled that evidence need not be part of pleadings. Therefore, that reason stated by the learned Sub Judge cannot be accepted. 19. As a whole, judgment of learned Sub Judge is not satisfactory. I stated that learned Sub Judge has started with a wrong assumption that burden of proving that cheques dated 06.01.1988 and 18.02.1988 are not loan transactions is on the appellant which in the light of the decisions referred supra is not correct. 20. Having heard the learned counsel on both sides, I am inclined to think that parties should get opportunity to adduce further evidence. Appellant should have the opportunity to summon the application for opening Ext.B1, account and examine Manager of the bank concerned. Also, if expert opinion is required on Ext.A5, respondent should get an opportunity to prove authenticity of the disputed signature in Ext.A5. I am also inclined to permit both sides opportunity to adduce further evidence. Resultantly these appeals are allowed by way of remand as under: (i) Common judgment and decree of the learned Sub Judge, Mavelikkara dated 22.09.2000 in O.S.Nos.8 of 1990 and 54 of 1991 are set aside. I am also inclined to permit both sides opportunity to adduce further evidence. Resultantly these appeals are allowed by way of remand as under: (i) Common judgment and decree of the learned Sub Judge, Mavelikkara dated 22.09.2000 in O.S.Nos.8 of 1990 and 54 of 1991 are set aside. (ii) O.S.Nos.8 of 1990 and 54 of 1991 are remitted to the Sub Court, Mavelikkara for fresh decision in the light of the observations made above and after giving both sides opportunity to adduce further evidence if any. (iii) Learned Sub Judge is directed to expedite trial and disposal of the suits since it is on the year, 1990 and 1991. (iv) Parties shall suffer their cost in the appeal. (v) Appellant shall be entitled to get refund of half the court fee paid on the appeal memorandums if otherwise the appellant is entitled to that. (vi) Parties shall appear in the courts below on 23.09.2013. All pending interlocutory applications will stand dismissed.