Research › Browse › Judgment

Rajasthan High Court · body

1997 DIGILAW 440 (RAJ)

Pokhar Mal v. Amar Chand

1997-04-01

R.R.YADAV

body1997
Honble YADAV, J. – List is revised. Learned counsel for the plaintiff-appellant Mr. D.S. Shishodia assisted by Mr. Manish Shishodia is present in Court whereas learned counsel representing defendant-respondent Mr. Leeladhar Gour is absent. In view of the aforesaid facts and circumstances, this Court has no alternative except to proceed ex parte against the defendant-respondents as envisaged under Sub-rule (2) of Rule 17 of Order 41 CPC. (2). Instant second appeal has been filed against the judgment and decree dated 13.2.1981 passed by learned Civil Judge, Udaipur in Civil Appeal No. 31 of 1980 affirming the judgment and decree dated 15.10.80 passed by learned Munsif Magistrate, Kotra in Civil Original Suit No. 15/78. (3). Brief facts necessary for disposal of the present appeal are that plaintiff-appellant Pokhar Mal filed a money suit with the allegation that the plaintiff is carrying on business as a sole proprietor of the firm named as M/s. Lalit Kumar Ganeshi Lal. There was a business dealing between the plaintiff and the defendants. Defendant-respondent No. 1 Amar Chand settled the accounts and signed the entry accepting a sum of Rs. 3785/- to be due on 20.10.70. Thereafter, interest was added from time to time and a sum of Rs. 678.20 was due towards interest. Thus, adding interest upto date, the plaintiff filed a suit for recovery of Rs. 3,808.50. (4). The defendant-respondents filed a detail written statement denying the averments made in the plaint and taking various defences. The defendants also claimed that the plaintiff is not a sole proprietor of the firm M/s. Lalit Kumar Ganeshi Lal but it is a Partnership Firm between plaintiff Pokhar Mal, Lalit Kumar and Ganeshi Lal. The defendants further claimed that they paid Rs. 3000/- to Ganeshi Lal towards the suit debt although they have not settled the account and no money is due as claimed by the plaintiff. (5). On the aforesaid pleadings of the parties, learned trial court framed as many as seven issues focusing attention of the parties to adduce evidence in support of their respective claims. (6). After analytical discussion of the evidence available on record, the learned trial court arrived at a finding that the defendant-respondents had paid a sum of Rs. 3000/- towards the suit debt though it was not paid to Shri Pokhar Mal plaintiff but the same was paid to one of the plaintiffs partner Shri Ganeshi Lal. (6). After analytical discussion of the evidence available on record, the learned trial court arrived at a finding that the defendant-respondents had paid a sum of Rs. 3000/- towards the suit debt though it was not paid to Shri Pokhar Mal plaintiff but the same was paid to one of the plaintiffs partner Shri Ganeshi Lal. After recording the aforesaid finding, learned trial Judge decreed the suit for balance of Rs. 463.20. (7). The defendant-respondents succumbed to the decree passed by the learned trial court but the plaintiff-appellant aggrieved against the judgment and decree passed by the learned trial court went in appeal before the learned District Judge who transferred the appeal to the court of learned Civil Judge, who in his turn dismissed the plaintiffs appeal by judgment and decree dated 3.2.81 as stated above. (8). Heard learned counsel for the appellant. Due to absence of defendant-respondents and their counsel, the court is deprived to get assistance of the defendant-respondents and their counsel in rebuttal. (9). Learned counsel for the appellant invited my attention towards the application moved by him under O.41 R.27, CPC on 14.9.81. Learned counsel for the appellant strenuously urged before me that for effective and complete adjudication of the controversy involved in the present case, an application moved under O.41 R. 27, CPC deserves to be allowed and papers accompanying with the aforesaid application may be taken on record. I am not satisfied with the aforesaid argument of the learned counsel for the appellant for the simple reason that under sub-rule (1) of Rule 27 of Order 41, CPC the parties to an appeal are not entitled to produce additional evidence whether oral and documentary before the appellate court unless any one exceptions enumerated under the aforesaid Rule are satisfied. (10). (10). A close scrutiny of Clause (a), (aa) and (b) of Sub-rule (1) of Rule 27 of Order 41, CPC clearly lead to a conclusion that additional evidence in appellate court can be accepted on record only if the Court from whose decree the appeal is preferred has refused to admit evidence, which ought to have been admitted or the party seeking to produce additional evidence, establishes that notwithstanding the exercise of his due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence be produced by him at the time when the decree appealed against was passed or the appellate court itself requires any document to be produced or any witness to be examined to enable it to pronounce judgment or for any other substantial cause, the appellate court may allow such evidence or document to be produced or witness to be examined. Sub-rule (2) of Rule 27 of Order 41, CPC provides that whenever additional evidence is allowed to be produced by an appellate court, the court shall record the reasons for its admission. (11). I am of the view that in such a situation, the courts of law either accepting or refusing the additional evidence are required to record reasons for doing so. (12). Here in the present case, admittedly, the documents sought to be produ- ced at second appellate stage are not covered under Clause (a) of Sub-rule (1) of Rule 27 of Order 41, CPC as these documents were not produced before any of the courts-below. As regards Clause (aa) of Sub-rule (1) of Rule 27 of Order 41, CPC is concerned, learned counsel for the appellant strenuously urged before me that these documents were not within his knowledge, hence, it could not be produced before the courts-below. I am not satisfied with the aforesaid argument of the learned counsel for the appellant as these documents were always in his possession and custody, an allegation contrary to it is not acceptable. (13). Learned counsel for the appellant further urged before me that the documents sought to be taken on record at second appellate stage may be taken on record as envisaged under Clause (b) of Sub-rule (1) of Rule 27 of Order 41, CPC. (13). Learned counsel for the appellant further urged before me that the documents sought to be taken on record at second appellate stage may be taken on record as envisaged under Clause (b) of Sub-rule (1) of Rule 27 of Order 41, CPC. Learned counsel for the appellant emphasised on the expression ``for any other substantial cause used under Clause (b) of Sub-rule (1) of Rule 27 of Order 41, CPC. I am not satisfied with this contention of the learned counsel for the appellant as well. For the obvious reasons that the expression ``for any other substantial cau- se means such substantial cause which is analogous to the provisions made under the preceding Clauses. As regards the applicability of Clause (b) of Sub-rule (1) of Rule 27 of Order 41, CPC it is made clear that the documents sought to be filed at this stage are not required to be produced to enable the Court to pronounce an effective judgment for complete adjudication between the parties. I am of the view that the instant second appeal is concluded by concurrent finding of fact recorded by both the courts below. The concurrent finding of fact recorded by both the courts-below are based on oral and documentary evidence available on record, which is not required to be disturbed or re-appraised in the light of the aforesaid documents, therefore, the application under O. 41 R. 27, CPC is rejected. (14). Now I propose to discuss the argument advanced by the learned counsel for the appellant on the merit of the instant second appeal. It is contended by the learned counsel for the appellant that in the facts and circumstances of the present case, learned Civil Judge, Udaipur was not right in holding that the plaintiff-appellant is not sole Proprietor of the Firm M/s. Lalit Kumar Ganeshi Lal. Suffice it to say in this regard that this argument does not reach upto the stage of substantial question of law, hence, rejected. (15). The aforesaid question is factual in nature and both the courts-below have not committed any substantial error of law or procedure in recording a finding that the plaintiff-appellant is not sole Proprietor of the Firm M/s. Lalit Kumar Ganeshi Lal. The aforesaid finding of fact is based on analytical discussion of oral and documentary evidence on record which does not require interference in second appeal. (16). The aforesaid finding of fact is based on analytical discussion of oral and documentary evidence on record which does not require interference in second appeal. (16). It is next contended by the learned counsel for the appellant to the effect that the payment made by the defendant- respondents to the plaintiffs father Ganeshi Lal, cannot be treated to be payment to the plaintiff-appellant. Although the aforesaid argument is attractive but it is fallacious. Once it is held that the aforesaid Firm is a partnership firm between plaintiff-appellant Pokhar Mal, Lalit Kumar and Ganeshi Lal, the courts-below have committed no error in holding that payment made to Ganeshi Lal plaintiffs father who is one of the partners of the Firm was good in law to give valid discharge to the defendant-respondents qua the plaintiffs debt, hence, the argument is hereby repelled. (17). In view of what has been discussed above, the instant second appeal lacks merit and it is hereby dismissed. Since, the defendant-respondents and their counsel did not appear to oppose the present appeal at the time of hearing, therefore, the costs is made easy.