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1999 DIGILAW 434 (KAR)

GURUPRASAD v. K. PADMAVATHI

1999-08-11

H.N.TILHARI

body1999
HARI NATH TILHARI, J. ( 1 ) THIS Revision Petition under Section 18 of the Karnataka Small causes Courts' Act arises from the Judgment and decree dated 8. 1. 1996 delivered by the XV Addl. Small Causes Judge at Bangalore in number S. C. 7496/93 dismissing the plaintiff's suit for recovery of the sum of Rs. 15. 145/ -. ( 2 ) THE facts of the case in the nut shell are that the plaintiff -company, as per plaint allegations is carrying on the financing and leasing business and, according to plaintiff, defendant No. 1 approached the plaintiffs-revision petitioners for purchase of one dynora Colour Television and the same being leased out to her on monthly rental basis. The plaintiffs - revision petitioner's case is that defendant Nos. 2 and 3 were the guarantors. According to the plaintiff, petitioner plaintiff purchased one Dynora T. V. from Balaji Electronics for Rs. 11,000/- on 1. 4. 1989 and delivered the same to 1st defendant and the 1st defendant executed the lease agreement on April 3rd, 1989 according plaintiffs' case-agreeing to pay Rs. 420/- per month in 36 months from 2nd May, 1989. According to plaintiffs', defendant No. 3, that is, respondent No. 3 was a drawing officer and Head Master of the staff members and he undertook to pay rental of Rs. 420/- every month after having deducted the same from the salary of the plaintiff. Plaintiff further alleged that he had purchased 6 more T. Vs from balaji Electronics and leased the same to other members of the staff of 3rd defendant. Plaintiff alleged that 3rd defendant used to pay the amount in lumpsum towards monthly rental of Rs. 420/- due by 1st defendant and its other staff members. He further averred that defendant No. 3 had paid only Rs. 4,320/- towards the rent due from defendant No. 1 and thereafter did not pay anything. The balance amount, according to plaintiff, due against defendants was rs. 10,800/- towards the hire charges. The plaintiff's case is that he had given notice, but notice was of no effect and, so plaintiff had to file the suit for recovery of the sum of Rs. 10,800/- as hire charges with penal interest amounting to Rs. 4,095/- and notice charges of rs. 250a, in all Rs. 15,1457 -. 10,800/- towards the hire charges. The plaintiff's case is that he had given notice, but notice was of no effect and, so plaintiff had to file the suit for recovery of the sum of Rs. 10,800/- as hire charges with penal interest amounting to Rs. 4,095/- and notice charges of rs. 250a, in all Rs. 15,1457 -. ( 3 ) ON notice being served, the defendants put in appearance and filed their written statements denying the plaintiff's claim. They denied that the 1st defendant approached the plaintiff's company for purchase of Dyanora Colour T. V. for least out or selling the same to defendants No. 1 on monthly rental basis. Defendant No. 1 denied that she ever approached the plaintiff. It was also denied that defendants 2 and 3 were guarantors. The defendant No. 1 had denied that Dyanora T. V. was purchased by the plaintiff and it was delivered by the plaintiff to the 1st defendant. The defendant No. 1 denied the execution of lease deed dated 3. 4. 89 and asserted that when T. V. was not delivered, there was no question of paying monthly instalments. The defendant No. 1 denied the liability for the sums claimed for the plaintiff. ( 4 ) THE Trial Court after examining all the evidence on record arrived at a finding that plaintiff has failed to make out his case for grant of the decree and dismissed the suit. ( 5 ) FEELING aggrieved from the Judgment dated 8. 1. 1996 the plaintiff has come up in revision under Section 18 of the Karnataka small Causes Courts Act. I have heard the plaintiffs - revision petitioners Counsel sri M. Mohan Rao. ( 6 ) NOTICE having been served on respondents 1 to 3, none has put in appearance on behalf of respondents 1 to 3. ( 7 ) ON behalf of the plaintiffs - revision petitioners Sri Mohan Rao contends that the decision of the Court below is erroneous and suffers form illegality, as Court below illegally refused to take into consideration Ex. P10 simply on the ground that the said document had been filed at the time when the further evidence of P. W. 1 was being recorded and not earlier. Learned Counsel contended that the refusal to take into consideration Ex. PIO has really resulted in dismissal of the suit. P10 simply on the ground that the said document had been filed at the time when the further evidence of P. W. 1 was being recorded and not earlier. Learned Counsel contended that the refusal to take into consideration Ex. PIO has really resulted in dismissal of the suit. He further contended that, it has really caused material injustice to the plaintiff-revision petitioner. He further contended that the Court below had observed that the version of the plaintiff has not been challenged and his version supports the documents. As defendant have not led any evidence, his version has to be accepted and upheld. In this view the Trial Court should have decreed the suit. He contended that, in view of the above the Court below was not justified in discarding Ex. P1 form consideration. Learned Counsel further contended that defendant not having come in witness box to challenge the plaintiff's version, plaintiff's suit ought to have been decreed. Learned Counsel for the plaintiff contended that from non-appearance by the defendant to challenge the plaintiff's version, when he did not appear in witness box, an adverse presumption should have been raised in favour of plaintiff's case and it is a substantial evidence to prove the plaintiff's case ad delivery of the T. V, to the defendant. ( 8 ) I have applied my mind to the contention made by the learned Counsel for the revision petitioner. It has to be taken note of that revisional jurisdiction of this Court is supervisory, no doubt under section 18 of the Karnataka Small Causes Courts' Act, the revisional jurisdiction is wider than the revisional jurisdiction of this Court under section 115, but it has to be taken note of that it is not akin to that of the 1st Appellate Court. The jurisdiction of the Court under Section 18 is confined by th expression, used as to satisfy that the decision of the Court below is according to law, what is, according to law has been and what is the expression, according to law means and what is the scope of jurisdiction of this Court and what is scope of revisional power under Section 18 stands clarified by interpretation of that expression by their Lordships of the Supreme Court, as given in the context of Section 25 of the Provincial Small Causes Courts' act which is Parimateria to Section 18 of the Karnataka Small causes Courts' Act. ( 9 ) THEIR Lordships of the Supreme Court in the case of HARISHANKAR vs RAO GIRDHARI1, have in the context of Section 25 of the Provincial Small Court's Act as well as in the context of section 35 of the Delhi Ajmer Rent Control Act, have explained the limits of jurisdiction, in cases under Section 25 which is in same terms of Section 18 of the Karnataka Small Causes Courts' Act, it will be very appropriate to refer to their Lordships' observations in paragraph-9 in the Harishankar's case, which reads as follows: "the section we are dealing with, is almost the same as section 25 of the Provincial Small Cause Courts Act. That section has been considered by the High Courts in numerous cases and diverse interpretations have been given, The powers that it is said to confer would make a broad spectrum commencing, at one end, with the view that only substantial errors of law can be corrected under it, and ending, at the other, with a power of interference a little better than what an appeal gives. It is useless 'to discuss those cases in some of which the observations were probably made under compulsion of certain unusual facts. It is sufficient to say that we consider that the most accurate exposition of the meaning of such sections is that of Beaumont, C. J. (as he then was) in Bell and Co. Ltd. vs Waman Hemraj, 40 Bom LR 125; (AIR 1938 Bom 223) where the learned Chief Justice, dealing with Section 25 of the Small Causes Courts Act, observed:"the object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. Ltd. vs Waman Hemraj, 40 Bom LR 125; (AIR 1938 Bom 223) where the learned Chief Justice, dealing with Section 25 of the Small Causes Courts Act, observed:"the object of Section 25 is to enable the High Court to see that there has been no miscarriage of justice, that the decision was given according to law. The section does not enumerate the cases in which the Court may interfere in revision, as does section 115 of the Code of Civil Procedure, and I certainly do not propose to attempt an exhaustive definition of the circumstances which may justify such interference; but instances which readily occur to the mind are cases in which the Court which made the order had no jurisdiction, or in which the Court has based its decision on evidence which should not have been admitted, or cases where the unsuccessful party has not been given a proper opportunity of being heard, or the burden of proof has been placed on the wrong shoulders- Wherever the Court comes to the conclusion that the unsuccessful party has not had a proper trial according to law, then the Court can interfere. But, in my opinion, the Court ought not to interfere merely because it thinks that possibly the Judge who heard the case may have arrived at a conclusion which the High-Court would not have arrived at. "this observation has our full concurrence " keeping these yardsticks laid down by their Lordships of the Supreme court, the case has to be examined. No doubt once a document has been taken on record, though filed belated. it has to be considered and it has not to be simply rejected from. being considered on the ground that it was filed at a later stage of the trial of the suit, once it has been admitted in the evidence, provided it and execution has been proved by material relevant and admissible evidence by person relying or the law has dispensed with the proof thereof and holds it to be and presumes to have been executed by the person by whom document is alleged or purports tc hove been executed and signed. ( 10 ) IN the present case the document cannot be said to be 30 years old. Document Ex. ( 10 ) IN the present case the document cannot be said to be 30 years old. Document Ex. P10 not being a document with standing of 30 years, there was no question of Section 90 of the Evidence Act being applied to it. Ex. PIO is the document on which the learned counsel for plaintiff placed much reliance to show that T. V. in question had been delivered to the defendant No. 1 respondent 1. It is dated 31. 3. 1989. The plaintiff had to prove this document on which he wants to rely to prove delivery of the Television by the plaintiff to the deft, but this document's execution by defendant - respondent No. 1 has not been proved by plaintiff. It has not been established that it contains the signature of K. Padmavathi deft, respondent No. 1. Learned Counsel contended that P. W. 1, has stated that Ex. P. 10 contains signature Of K. Padmavathi and that signature has been marked as Ex. P. 10a. ( 11 ) THE statement of P. W. 1 has beer read over. It is one of the trite principles of law of evidence that at; per Section 61 that contents of a document may be proved either by primary or secondary evidence. Section 64 of the Evidence Act further provides that documents must be proved by primary evidence, except in cases mentioned hereinafter, that is except in cases it may be said to be covered by Sections 65 or 66 of the Evidence Act, the secondary evidence may not be admissible. For proof of contents of document, document itself is said to be primary evidence and it has to be produced for inspection of the Court. Now execution of the document by person by whom it purports to have been or alleged to have been executed and signed, is a fact which can be proved by oral evidence the witness, who saw the said person to have been executing and signing the document or the signature of such person on the document can be proved by deposition of persons, in whose presence and seeing the document was executed and signed. The law is that oral evidence when required to be produced to prove such fact, the oral evidence in ail such cases must be direct, that is of the person, who has seen the fact which ould could be proved. The law is that oral evidence when required to be produced to prove such fact, the oral evidence in ail such cases must be direct, that is of the person, who has seen the fact which ould could be proved. A signature is to be proved by oral evidence of the person, who has seen the person concerned signing the document or atleast of a person, who has seen the person concerned signing documents on earlier occasion, on the basis thereof he orgenised his signature. It may also be proved by producing the habdwriting finger prints experts report and deposition as well as a pieces of admissible evidence. ( 12 ) P. W. 1, has neither stated that the document Ex. P10 was signed by deft No. 1 in his presence and seeing nor has he deposed anywhere that he has been well conversant with the signatures of deft-1, and he has seen deft-1 signing on other occasions many documents and, so he recognised his signature. In this view of the matter, the statement of P. W. 1 is inadmissible to prove the execution of Ex. PIO or to prove the signature of deft 1 on Ex. P10. No doubt that document, if at all is considered reveals that somebody had signed it on behalf of Balaji Electronic, even that person has not been produced by the plaintiff to prove the execution. In this view of the matter, the document Ex. PIO cannot be taken to have been proved to have been executed by deft 1 or person whose name is mentioned at the place of customer nor signature can be said to have been proved to have been of deft respondent No. 1, where customer is written. So this document could not be taken into consideration and was rightly not considered, though Court has taken a wrong stand or basis for rejecting it from consideration. Even if otherwise the document would have been taken into consideration this only reveals that Balaji Electronics directly sold the item to k. Padmavathi if signature would have been proved to be of said k. Padmavathi. Again this document does not show that Balaji delivered the goods to the. plaintiff and plaintiff had handed over delivery of the goods, i. e. , T. V. to the deft No. 1. Again this document does not show that Balaji delivered the goods to the. plaintiff and plaintiff had handed over delivery of the goods, i. e. , T. V. to the deft No. 1. so this document on which much reliance has been placed by the petitioners Counsel cannot be taken to prove the delivery of the goods, that is Television by plaintiff - revision petitioner to the deft. No doubt Trial Court has adopted a wrong approach in rejecting document simply on the ground that it has been filed at a later stage, that could not be the basis for rejection that might be wrong, but non-consideration cannot be said to be illegal for the reasons, as mentioned by me above. Thus considered, in my opinion plaintiff, really had failed to prove his case that plaintiff has purchased the T. V. in question from Balaji electronics and, when delivered to defendant No. 1 under any lease agreement. In this view of the matter, in my opinion the present revision Petition has got no merits and has to be dismissed, as none has appeared to contest the revision, while dismissing the revision, I may observe that no costs are awarded in favour of the respondent. The Revision Petition, is hereby dismissed. --- *** --- .