JUDGMENT : Mr. Dinesh Mehta, J. The appellant has filed the present appeal under Section 96 of the Code of Civil Procedure, oppugning the judgment and decree dated 25.07.1990, whereby the suit for recovery of money instituted by him, registered as Civil Original Suit No. 17/1980 has been dismissed. 2. The facts in brief, appertain to the present appeal are that the plaintiff-appellant filed a suit for recovery of a sum of Rs. 25,326/- with an assertion that defendant's firm - M/s Madhav Lal. Shrilal, a wholesaler dealer and a licensed commission agent to trade in tobacco orally agreed to purchase tobacco on commission basis, through his firm - M/s Bohra Brothers; also engaged in the business of purchase and sale of tobacco, having license to carry on the trade and storage of tobacco. As per the agreement, the plaintiff was required to procure tobacco on behalf of the defendant and after weighment and filling the same in the bags, was supposed to send the same to the defendant's village i.e. Jasma, for which the plaintiff was promised a commission of Rs. 5/- per mann (40 Kg), apart from the cost of tobacco, which was fixed as Rs. 75/- per mann. 3. As per the terms agreed, the plaintiff was also entitled to reimbursement of the cost of packing, transportation and interest at the rate of 1% on the due amount of the cost of tobacco. The plaintiff's case has been that after the aforesaid oral agreement, he started purchasing tobacco from various agriculturists/producers of tobacco of the area and sent the same to the defendant. The total quantity he purchased during relevant period was 21,000 Kgs or 210 quintal/525 'mann', valuing Rs. 39,375/-, apart from such cost, commission of Rs. 2625/- at the rate of Rs. 5/- per 'mann' was also payable to him. 4. The plaintiff filed a suit with an assertion that apart from the cost and commission above-mentioned, the defendant owes to him, a sum of Rs. 2625/- being commission, Rs. 2,000/- being cost of filling 500 bags at the rate of Rs. 4/- per bags, Rs. 250/- for the fare of Truck, Rs. 150/- for octroi, Rs. 400/- for Loading and unloading and remaining amount being cost of the Tobacco. 5. Plaintiff averred that after adjustment of the part amount the defendant had paid, in all a sum of Rs. 2,000/- being cost of filling 500 bags at the rate of Rs. 4/- per bags, Rs. 250/- for the fare of Truck, Rs. 150/- for octroi, Rs. 400/- for Loading and unloading and remaining amount being cost of the Tobacco. 5. Plaintiff averred that after adjustment of the part amount the defendant had paid, in all a sum of Rs. 18,900/- is due from the defendant, whereupon interest @ 1% to the tune of Rs. 6,426/- become payable for delay in payment of the aforesaid amount. The plaintiff further averred that in response to the notice dated 25.02.1980 he had sent, vide registered post to the defendant, the defendant though agreed to purchase the tobacco through him, disputed the due amount, as according to him, he himself had paid the consideration to the purchasers/villagers. 6. In response to the plaint as filed by the plaintiff, the defendant filed a written statement denying the assertions made in the plaint, while completely refuting the appointment of the plaintiff as his commission agent and transacting any business through/with him. 7. The defendant's stance in the written statement has been that the plaintiff had filed the suit with a motive to harass the defendant, as a counter blast to the family dispute, with the defendant's sister, as a result of strained matrimony. The defendant asserted that either he himself or his son went to the area and purchased the tobacco at the relevant time in the truck(s) engaged by him, alongwith the bags to procure the tobacco. The tobacco so purchased was got weighed, packed in the bags and transported in such trucks to their place, in which process the plaintiff was never involved. It has been stated that the defendant had purchased 18,854 kgs of tobacco, out of which, 130 kg was however purchased from the plaintiff. 8. It has also been contended by the defendant that tobacco was a licensed commodity, for which, transactions could be carried on, only after obtaining the requisite permits namely T.P.-2 and T.P.-3, while maintaining that the commission business of Tobacco is impermissible in law. 9. 8. It has also been contended by the defendant that tobacco was a licensed commodity, for which, transactions could be carried on, only after obtaining the requisite permits namely T.P.-2 and T.P.-3, while maintaining that the commission business of Tobacco is impermissible in law. 9. On the basis of the pleadings of the parties the following issues had been framed:- ^^fuEufyf[kr rudh;kr dk;e dh x;h %& 1- D;k izfroknh xzke tklek es ek/kqyky Jhyky ds uke ls rEck[kw ds deh'ku ,tsaV dk O;olk; djrk gSA 2- D;k izfroknh xzke flnfM+;kl ds vkl ikl ds xzkeh.kksa ls rEck[kw oknh ds ek/;e ls lu~ 1977 ls Ø; djrk jgkA 3- D;k izfroknh us oknh ds ek/;e ls lu~ 1977 esa rEck[kw Ø; djuk fuf'pr fd;k ftlesa oknh xzkeh.kksa ls rEck[kw izfroknh ds fy, Ø; djsxk] mldk Hkqxrku ogha djsxk] Ø; dh gqbZ rEck[kw oknh izfroknh ds ;gka tklek fHktok;sxk] oknh izfroknh ls ewY; ds lkFk lkFk 5@& :- izfr e.k vkMr izkIr djsxk vkSj ifjogu dk Hkkj izfroknh gh ogu djsxk] tks jkf'k oknh dks izfroknh esa ns; 'ks"k jgsxh ml ij izfroknh oknh dks ,d izfr'kr ekfld nj ls C;kt dk Hkqxrku djsxkA 4- D;k oknh us izfroknh ds fy, ifjf'k"V ^^v** ls nf'kZr rEck[kw 75@& :i;s izfre.k dh nj ls fnukad 10-4-77 ls Ø; dh vkSj izfroknh dks HksthA bl rEck[kw ds eqY; dk Hkqxrku 39]375 :i;s ifjf'k"V esa vafdr O;fDr;ksa dk oknh us fd;k \ 5- D;k oknh izfroknh us 500 cksfj;ksa dk ewY; 2000 :i;s izkIr djus dk vf/kdkjh gS \ 6- D;k oknh izfroknh ls okn ds vuqPNsn Øe 8 esa of.kZr jkf'k 800 :i;s izkIr djus dk vf/kdkjh gS \ 7- D;k ek/koyky Jhyky iathd`r O;olk; la?k gS] ;fn ,slk gS rks bldk okn ij D;k vlj gS \ 8- D;k oknh izfroknh ls Hkqxrku ds i'pkr 'ks"k jgh jkf'k 18900 :i;s ,oa C;kt 6426 :i;s izkIr djus dk vf/kdkjh gS \ 9- izfrdkj D;k gksxk \** 10. On behalf of the plaintiff, Exhibits.1 to 4, being entries made in his diary regarding purchase/procurement of tobacco and many other documents were produced. Out of which Ex.7, Ex.8 & Ex.9, being the letters written by the defendant - M/s Madhav Lal and Shri Lal to the plaintiff - firm were produced in a bid to prove existence of business relations between the plaintiff and the defendant. 11. Out of which Ex.7, Ex.8 & Ex.9, being the letters written by the defendant - M/s Madhav Lal and Shri Lal to the plaintiff - firm were produced in a bid to prove existence of business relations between the plaintiff and the defendant. 11. Apart from the documentary evidence, the plaintiff produced himself and may other persons in the witness box in support of his claim; whereas Madhav Lal and his son Kallu Lal appeared in the witness box to demolish the plaintiff's case. 12. Learned Trial Court, after weighing the evidence, oral and documentary, adduced by the parties has decided issue No.1 in the manner that though defendant carries on the trade of tobacco in village Jasma, but the fact that he is a commission agent has not been proved; while deciding issue No.2 against the plaintiff, the Court below held that the plaintiff has failed to prove that he has purchased the goods for and on behalf of the defendant from the purchasers/agriculturists of the nearby areas. 13. Issues No.3 and 4, after appreciation of the evidence, came to be decided in favour of the defendant, with a finding that the plaintiff has failed to prove his entitlement of the claimed amount. 14. While deciding issue No.5 against the plaintiff, the Trial Court has held that since the plaintiff has failed to prove issues No.3 and 4 in his favour, and the fact that he had purchased tobacco for defendant; issue No.5 relating to cost of bags has been rendered of academic importance only. 15. Issue No.6 related to a sum of Rs. 800/- being cost of transportation too came to be decided against the plaintiff. The issue No.7 which related to the status of the defendant - Firm has however been decided against the defendant, as it has failed to produce any partnership deed or documentary evidence, evincing that it was a registered firm; whereas issues No.8 and 9 have been decided against the plaintiff in light of the findings arrived qua issues No.1 to 6. 16. As a result of the findings aforesaid, the suit filed by the plaintiff came to be dismissed. 17. Calling in question, the judgment and decree dated 25.07.1980, Mr. 16. As a result of the findings aforesaid, the suit filed by the plaintiff came to be dismissed. 17. Calling in question, the judgment and decree dated 25.07.1980, Mr. Prashant Tatia, learned counsel for the appellant submitted that the learned Trial Court has failed to appreciate the evidence in its true perspective and drawing the requisite interference by linking the statements of various witnesses, who have unequivocally proved that there was a business relationship between the plaintiff and the defendant, as was evident from perusal of the issue No.8 and 9, and that the plaintiff had procured tobacco for defendant, which was clear from perusal of Exhibits.1 to 4, being diary maintained by him, read with the statements (Appendix - A) filed with the plaint. According to him these documents indisputably prove that the plaintiff had purchased 21,000 Kgs tobacco for the defendant. Taking the Court meticulously through the various statements, attempt of Mr. Prashant Tatia has been that the plaintiff has discharged his burden of proving that the quantity aforesaid has been procured by him, on behalf of the defendant from the local producers and the same has been loaded in the truck, sent by the defendant for which the amount claimed was outstanding and the defendant has defaulted rather denied to pay such amount. 18. Learned counsel for the appellant navigated the Court through the statements of the plaintiff, and other witnesses namely Kalyan, Ramlal, Rupa and Bansi lal to substantiate his stand that all the witnesses have proved that the plaintiff had purchased tobacco for the defendants, got them filled in the bags and sent the same to Jasma to the defendant's end. 19. After reading the statements of the plaintiff's witnesses, Mr. Tatia invited attention of this Court towards the statements of Madhavlal (defendant) and his son Kalulal to argue that the testimony of defendant cannot be believed as they have taken conflicting stands between themselves. He submitted that the defendant at one point says that he himself had come to the plaintiff's village with some people but while naming the persons/labourers who accompanied him, he fumbled and failed to disclose their names correctly. He submitted that the defendant at one point says that he himself had come to the plaintiff's village with some people but while naming the persons/labourers who accompanied him, he fumbled and failed to disclose their names correctly. He brought to fore a few discrepancies: that on one hand the defendant Madhavlal says that out of the four trips, one truck went three times and one other truck went once to transport tobacco from village Sindariyas to Jasma, and on the other, his son states that it was only one truck which ferried four times from village Sindariyas to Jasma for transporting the tobacco. 20. Learned counsel for the appellant argued that if the story of the defendant that they themselves had come to village Sindariyas and purchased the tobacco directly from the agriculturists/producers is to be accepted, it was incumbent upon him to have produced at least a few agriculturists/producers to substantiate such version. 21. With these arguments and critical analysis of the statement made by the parties, learned counsel for the appellant vehemently argued that the plaintiff had proved beyond doubt that there was a business relationship between the plaintiff and defendant and that the plaintiff had procured and purchased 21,000 Kgs of tobacco on behalf of the defendant for which requisite payment has not been made to him, which he is entitled to. 22. Per contra, Mr. Abhishek Mehta, learned counsel for the respondent - defendant, passionately argued that the plaintiff's entire case is based on hypothesis, in a bid to harass the defendant. He contended that the plaintiff has claimed himself to be a commission agent for which he neither possessed a license nor has he produced any evidence in support of the same; the letters, being Exhibits 7 to 9 neither contain any particulars of transactions nor are they enough to prove that the plaintiff had procured tobacco for and on behalf of the defendant. Mr. Abhishek submitted that the defendant Madhavlal and his son Kalulal have appeared in the witness box and deposed that they themselves had gone to the village Sindariyas to purchase tobacco, whenever they wanted. It was under their instructions/directions that four trucks accompanied them to the village Sindariyas, got loaded with the tobacco and brought the tobacco to their village Jasma. 23. It was under their instructions/directions that four trucks accompanied them to the village Sindariyas, got loaded with the tobacco and brought the tobacco to their village Jasma. 23. Learned counsel for the respondent also pointed out that the defendant has proved that they went to Sindariyas, stayed in the house of agriculturists/producers of the tobacco and procured the goods without taking even any type of assistance from the plaintiff, let alone facilitating the transactions. He added that the defendant had admitted to have purchased 130 Kgs tobacco from the plaintiff and the documents Exhibits 7 to 9, much reliance whereupon has been made by learned counsel for the appellant are also relatable to such quantity. In fact, these documents neither proves any relationship of agency between the plaintiff and the defendant nor do they record/depict any quantity of tobacco purchased or otherwise, he emphasised. 24. Mr. Mehta submitted that the plaintiff's sheet anchor has been the entries in the diary, being Exhibits 1 to 4, even if such notings in the diary are taken into consideration, the same only proves the procurement of 21,000 Kgs of tobacco, without indicating as to for whom, the same was purchased much less proving that the said quantity was purchased by the defendant. 25. Mr. Mehta relied upon judgment of Hon'ble Supreme Court reported in 1998 (3) SCC page 470 to canvass that under Section 34 of the Evidence Act, if entries in the books of account are sought to be proved, a corroborating evidence of the person making such entries, is necessary. Applying the ratio of the judgment he urged that the entries in the diary cannot be deemed to have been proved. 26. Resting his case, learned counsel submitted that the plaintiff - appellant at best, has been able to prove to have purchased 525 mann' or 21,000 kgs of tobacco, but has failed to lead any evidence documentary or oral, showing that such quantity of goods had ever been sent to the defendant. 27. Having heard learned counsel for the parties at length and after wading through the documentary as well as oral evidence on record, this Court does not find any substance in the appeal filed by the appellant and is of the view that the learned Trial Court has committed no error of law or fact in rejecting the suit filed by the plaintiff. 28. 28. After scrutinising the material available on record including the statements given by the plaintiff, it transpires that the plaintiff has simply produced the diary (Exhibits 1 to 4) evincing procurement of the tobacco, which does not contain any particulars about the date of purchase vis-a-vis the person from whom such quantity was purchased. The entries in the diary at best reflect that 21,000 Kgs of tobacco was purchased/procured by the plaintiff, but does not indicate for whom it was purchased. In light of the fact that the plaintiff himself was engaged in the business of purchase and sale of tobacco, such entries cannot even suggest as to whether the goods mentioned in the diary were purchased/procured by the plaintiff for himself or for the defendant or any other third party. 29. This Court fails to understand that if the plaintiff himself was engaged in the business of purchase and sale of tobacco stationed in a village, having tobacco in abundance, why would the defendant appoint him as a commission agent for procurement of tobacco for him? The plaintiff could have simply sent/sold the goods to the defendant in Jasma. There was no occasion for the defendant to send four trucks for loading of the tobacco from Sindariyas, as suggested by the plaintiff. The plaintiff has failed to prove that he had sent 525 mann' of tobacco to the defendant by leading any oral or documentary evidence. The witnesses produced by him at best prove that the plaintiff had procured tobacco; however causal link between the procurement and such procurement was for the defendant on commission basis, is totally absent. 30. The argument advanced by Mr. Tatia that the defendant's evidence cannot be relied as his testimony is untrustworthy, for the discrepancies he has highlighted, based on provision enshrined under Section 114 of the Evidence Act cannot be accepted. The burden to prove a fact in a civil case lies solely upon the one who asserts it, which in the present case is the plaintiff. It is the plaintiff who has to prove his case and he cannot thrive upon the lack of credibility of the defendant's evidence. It is true that there is some discrepancy between the statement given by Madhavlal and his son Kalulal in relation to the number of trips one truck had done but the same is insignificant and inconsequential, in the present case. It is true that there is some discrepancy between the statement given by Madhavlal and his son Kalulal in relation to the number of trips one truck had done but the same is insignificant and inconsequential, in the present case. After so many years of the transactions, it is natural that the defendant may not recollect whether one truck did three trips or four trips. 31. Be that as it may such a discrepancy cannot be considered as casting a shadow of doubt over the testimony of defendant's witnesses, so as to completely discard it. 32. With respect to the argument of the appellant that the Court below has erred in deciding issue No.2 against him by holding that the "plaintiff has failed to prove the transactions", suffice it to observe that on overall appreciation of the evidence what can at the best be said is; that the defendant had some business relations with the plaintiff, but in spite of this, issue No.2 as framed has rightly been decided by the learned Trial Court, against the plaintiff, inasmuch, the plaintiff has only been able to prove that there were certain transactions, but he has not been successful in proving that the tobacco which the defendant had procured/purchased from village Sindariyas, was through the plaintiff, or that the quantity the plaintiff purchased was ever sent to the defendant which were the pivotal point or the fulcrum of the entire case. 33. In view of the discussion forgoing and in light of the analysis of the evidence documentary and oral, this Court does not find any substance in the appeal, for which it is dismissed. The parties are left to bear their own costs.