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2001 DIGILAW 1689 (AP)

Vattikuti Venkataraju v. Kudipudi Chitti Abbayi

2001-12-24

P.S.NARAYANA

body2001
ORDER : The unsuccessful plaintiff in O.S.No. 154 of 1980 on the file of the Subordinate Judge, Rajahmundry is the appellant. The appellant-plaintiff had instituted the suit for recovery of Rs. 37,315.60 with costs and subsequent interest thereon. The case of the appellant-plaintiff is that he is a contract or owning a road roller bearing No. AAP 7160 and the respondent-defendant had taken it on hire from him agreeing to pay a rental of Rs.8,000/- per month and it was taken delivery through his agent one Sri Babu Rao. The respondent-defendant used the roller for four months and returned it in February, 1980. It was also pleaded that the respondent-defendant told the appellant-plaintiff that the bills were delayed by the Roads & Buildings Department and on receipt of them the amount will be paid. It was also further pleaded that the appellant-plaintiff sent for the respondent-defendant who had promised to pay by 13-3-1980 and since he did not keep up his word the appellant-plaintiff caused a registered notice dated 17-3-1980. Though the respondent defendant received the same he had hot sent any reply. 2. The respondent-defendant filed a written statement denying all the allegations. It was pleaded in the written statement that the respondent-defendant is not aware whether the appellant-plaintiff is the owner of the road roller. However, it was specifically denied that he had taken the said roller from the appellant agreeing to pay a rental of Rs. 8,000/- per month and that it was taken through the agent Babu Rao. The respondent had taken a specific stand that he has no such agent at all and the alleged Babu Rao is not at all his agent at any point of time. The respondent further pleaded that on receipt of the notice he met the appellant and questioned about the notice for which the appellant gave a reply stating that by mistake it was sent to him instead of sending it to Babu Rao. On the strength of the above pleadings the Court below had settled the following issues: (1) Whether the defendant took the road roller of the plaintiff on monthly rental of Rs. 8,000/-through defendant's agent one Babu Rao and is liable to pay the said amount; (2) To what relief- 3. The Court below had recorded the evidence of the respective parties. P.Ws. 8,000/-through defendant's agent one Babu Rao and is liable to pay the said amount; (2) To what relief- 3. The Court below had recorded the evidence of the respective parties. P.Ws. 1 to 3 were examined on behalf of the plaintiff and D.W. 1 was examined on behalf of the defendant. Exs. A-1 to A-3 and also X-1 toX-4 were marked. The Court below at paragraphs 5 to 9 had discussed both issues (1) and (2) and had ultimately dismissed the suit. Aggrieved by the same the appellant has preferred the present appeal. 4. Sri A. Subhash Chandra Bose, the learned Counsel representing the learned senior Counsel Sri C. Poornaiah, had strenuously contended that the Court below had totally erred in dismissing the suit though the evidence of P.Ws. 1 and 3 clearly establishes the case of the appellant. The learned Counsel also contended that the evidence of P.W. 2 and also Exs. X-1 to X-4 clearly points out that the respondent is liable to pay the suit amount. The learned Counsel had taken me through Exs. A-1 andA-2 and also the evidence of P.Ws. 1 to 3 and D.W. 1 in detail and had also pointed out the contents of Exs. X-1 to X-4 in this regard. The learned Counsel had also contended that incase the Court below had felt that the person who signed Ex. A-1 is also a necessary party it should have impleaded the said Babu Rao also and dismissing the suit on that ground is totally unsustainable in law. The learned Counsel placed reliance on the evidence of P.Ws.1 and 3 and contended that it is established that Babu Rao signed Ex. A-1 as the agent of the respondent only. The learned Counsel also had contended that Exs. X-1 to X-4 clearly establish that the respondent used the road roller not belonging to the Department and had the benefit of claiming money from the Department and had not let any evidence to show that he had obtained the roller of somebody else; hence, on the strength of the conduct of the respondent coupled with non-giving of reply it may be taken that the appellant is entitled to a decree as prayed for against the respondent. The learned Counsel also placed reliance on Pannalal v. Dy.Commr., Bhandra, 1973 AIR SC 1174 and State of West Bengal v. B.K. Mondal and Sons, 1962 AIR SC 779. The learned Counsel also placed reliance on Pannalal v. Dy.Commr., Bhandra, 1973 AIR SC 1174 and State of West Bengal v. B.K. Mondal and Sons, 1962 AIR SC 779. (Equal Citation : 2007 6 ALT(D.N.)(SC) 12.4) 5. Sri K.L.N. Swamy, the learned Counsel representing the respondent had contended that the appellant miserably failed in discharging the burden cast upon him and hence having been unsuccessful in letting any proper evidence the appellant cannot try to take advantage of the weakness of the case of the respondent. The learned Counsel also had contended that it cannot be laid down as a rule of law that merely because a reply was not given to a notice it can betaken that the opposite party had admitted the allegations made in the notice. The learned Counsel had also drawn my attention to the evidence of D.W. 1 who had explained under what circumstances he had not given any reply. The learned Counsel also had pointed out that in the light of the specific stand taken by the respondent that he has nothing to do with Babu Rao there should be some material to connect the respondent with Babu Rao and in the absence of the same it cannot be said that there is any binding contract much less any breach of contract relating to the terms and conditions or any money claim arising therefrom. The learned Counsel also had pointed out the terms and conditions of Ex.A-1 and had contended that as per the recitals of Ex. A-1 the respondent cannot be fastened with any liability. The learned Counsel further pointed out that none of the persons concerned with Ex. A-1 at least had been examined and the evidence of P.W. 1 alone - an interested testimony in this regard, may not be sufficient. 6. Heard both the Counsel and perused the material available on record. The points which arise for consideration in this appeal are: (a) Whether, in the facts and circumstances of the case the respondent can be fastened with the suit liability; (b) To what relief- 7. Point (a): The appellant instituted the suit for recovery of amount as hire charges for using the road roller by the respondent in his R & B contract works in Amalapuram division during the period 1979-80. Point (a): The appellant instituted the suit for recovery of amount as hire charges for using the road roller by the respondent in his R & B contract works in Amalapuram division during the period 1979-80. The case of the appellant is that the respondent and his agent one Babu Rao came to him one week prior to the agreement marked as Ex. A-1 dated 2-10-1979 and on the date of Ex. A-1 the said agent had taken delivery of the roller by executing an agreement by him on behalf of the respondent. In order to establish his case the appellant had examined himself as P.W.1 and marked Ex. A-1 the agreement referred to supra,Ex.A-2 the office copy of the notice dated 17-3-1980 and Ex. A-3 the postal acknowledgement. Apart from this the appellant had also summoned Exs. X-1 toX-4 from the Executive Engineer, Amalapuram and these documents were marked through P.W. 2. The evidence of P.W. 2 is that during 1979-80 the respondent sought permission of the Department for using private roller in the contract works of the Department undertaken by him since the departmental roller was not available. Ex. X-1 is the permission letter and Ex. X-2 is the relevant order. Ex.X-3 is another letter and Ex. X-4 is the relevant order. The other witness is P.W. 3. P.W. 3 worked as driver of the appellant's roller when it was engaged by the respondent. No doubt, P.W. 3 deposed that one Babu Rao used to supervise his work now and then and in fact on the strength of these Exs. X-1 to X-4 and also the evidence of P.W. 3 coupled with the evidence of P.W. 1 and also the non-giving of reply to Ex. A-2 notice the learned Counsel for the appellant had made a serious attempt to show that the claim of the appellant is proved. It is pertinent to note that on the strength of certain probabilities a party cannot be fastened with a liability. The very basis of the case of the appellant is on the strength of Ex. A-1. It was signed by one Babu Rao only. The contention that Babu Rao, as an agent of the respondent, signed Ex. A-1 is not established and none concerned with Ex. A-1 had been examined. The evidence of P.W. 3 is of general nature. The very basis of the case of the appellant is on the strength of Ex. A-1. It was signed by one Babu Rao only. The contention that Babu Rao, as an agent of the respondent, signed Ex. A-1 is not established and none concerned with Ex. A-1 had been examined. The evidence of P.W. 3 is of general nature. No doubt, the evidence of the respondent as D.W. 1 and several contradictory aspects in the evidence also had been pointed out. It may be that the respondent as D.W. 1 had not deposed all the aspects clearly but, however, as far as the denial of transaction is concerned his evidence is clear the categorical. Hence, it is needless to say that the burden lies on the appellant to establish the contract between the parties so as to fasten the liability. No doubt, an alternative contention also was raised in this regard stating that the respondent having derived the benefit by using the roller at the relevant point of time, cannot retain the advantage or the benefit. Strong reliance was placed on Pannalal (1 supra) and State of West Bengal(2supra). In State of West Bengal's case it was held that 'between the person claiming compensation and person against whom it is claimed some lawful relationship must subsist for that is the implication for the use of the word "lawfully' in Section 70 of the Indian Contract Act. But the said lawful relationship arises not only because the party claiming compensation has done something for the party against whom the compensation is claimed but because what has been done by the former has been accepted and enjoyed by the latter.'- As far as the proposition of law is concerned there cannot be any dispute. But the question is whether this principle can be extended to the facts of the case on hand. As already mentioned above, Ex. A-1 was signed by Babu Rao only. It does not refer that Babu Rao signed it as agent of the respondent. None of the persons concerned with the transaction had been examined. Except the evidence of P.W.1 no other evidence is forthcoming. The evidence of P.W.3 is of general nature as already referred to supra. As already mentioned above, Ex. A-1 was signed by Babu Rao only. It does not refer that Babu Rao signed it as agent of the respondent. None of the persons concerned with the transaction had been examined. Except the evidence of P.W.1 no other evidence is forthcoming. The evidence of P.W.3 is of general nature as already referred to supra. Hence, in the facts and circumstances of the case, it cannot be said that the contract between the appellant and the respondent can be said to have been established at all. In the absence of any such evidence, the Court cannot fasten the liability on the respondent only on the strength of the non-issuance of any reply to the notice issued by the appellant. It is no doubt true that in certain cases the non-issuance of reply to a notice also can be taken as one of the circumstances to probabilise the case of the opposite party but that by itself cannot be sufficient to fasten the legal liability. In the present case, an explanation was given by the respondent who had deposed as D.W. 1 why he had not chosen to issue the reply. In the light of the facts and circumstances I am of the clear opinion that the findings of the Court below on this aspect do not suffer from any legal infirmity warranting any interference in this appeal. 8. Point (b) : In the light of the aforesaid discussion the judgment and decree of the Court below do not suffer from any illegality or legal infirmity warranting interference by the appellate Court. Hence all the findings are confirmed. The appeal being devoid of merits is dismissed. However, in the facts and circumstances of the case, no order as to costs.