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1964 DIGILAW 142 (PAT)

Tunu Khan v. Union Of India Representing Central Rly. And South Eastern

1964-09-21

U.N.SINHA

body1964
Judgment U.N.Sinha, J. 1. This is an application filed by the plaintiff under Sec.25 of the Provincial Small Cause Courts Act. The plaintiff had instituted a suit claiming Rs. 536.09 paise from the defendant on account of non-delivery of a (SIC) of fish, booked from Bombay to Chakradharpur. The plaintiffs case was as follows: On the 24th August, 1961, a consignment of fish was booked at Bombay Victoria Terminus to be delivered to the plaintiff at Chakradharpur. But, it was not delivered due to negligence and misconduct of the Railway servants. The consignment ought to have been delivered on the 26th August, 1961. After giving the required notices, this suit was instituted, claiming the amount mentioned above. The plaintiffs case was contested by the defendant, and on hearing the parties, the suit has been dismissed. It appears that the plaintiff had examined two witnesses, who were the plaintiff himself examined as P. W. 1, and one S. N. Roy, examined as P. W. 2, who is said to have been an employee of the consignor firm in Bombay. The plaintiff attempted to prove a document, called Bijak (Exhibit 1), said to have been sent by the consignor to the consignee, upon which the consignee had paid the price of the fish. The learned Small Cause Court Judge has disbelieved that P. W. 2 was really a servant of the Bombay firm and he has rejected Exhibit I as not being a genuine Bijak. The evidence of P. W. 1 has also been rejected. Thus, the claim has failed. 2. Learned counsel for the petitioner has submitted that the plaintiff had examined P. W. 2 as an employee of the Bombay firm, who had proved the Bijak (Exhibit 1), and as there was no contrary evidence adduced on behalf of the defendant, the trial court had erred in law in rejecting the oral and documentary evidence adduced by the plaintiff. According to learned counsel, when P. W, 2 had deposed that he was an employee of the Bombay firm and that Exhibit 1 was the Bijak sent by the firm, through this witness, the court trying the suit had no other, alternative except to accept this case, unless the defendant adduced evidence to show that P. W. 2 was not an employee of the firm and Exhibit I was not the relevant document sent by the firm to the plaintiff. It is, however, difficult to hold that the learned trial Judge has committed any error of law, as contended by learned counsel. The learned Judge has taken into consideration every material factor that could possibly arise in weighing the evidence of P. W. 2 and in considering Exhibit 1. It is not possible to hold that without any rebutting evidence it was not open to the trial court to reject the testimony of P. W. 2 and hold that Exhibit 1 was not a genuine document. The learned trial Judge has weighed the evidence of the two witnesses examined by the plaintiff and he has considered the genuineness of Exhibit 1 on its own merits. It is not possible to interfere with his conclusions, It is secondly urged by learned counsel that when the consignment of the plaintiff was not disputed or was not challenged, or, was not found to be false, the trial court was bound to give some reasonable damage to the plaintiff, even when the plaintiff failed to prove his claim to the extent of Rs. 536.09 paise. Reliance is placed upon Section 73 of the Indian Contract Act for this proposition. This contention of learned counsel is also not tenable. It was for the plaintiff to prove the loss that he had suffered. and when the plaintiff went to court for a claim of Rs. 536.09 paise, it was entirely upto the plaintiff to prove his claim. After rejecting the evidence of the plaintiff for his claim of any particular amount, the trial court could not have given any other decree to the plaintiff on the basis of some reasonable compensation. In my opinion, on the facts round in this case, the plaintiffs suit has rightly been dismissed. 3. Under the circumstances, this application fails and it is dismissed but. the parties should bear their costs of this court.